NO] FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA,

Hon. Dennis M. Cavanaugh

Plaintiff,

OPINION

V.

Civil Action No. 1 0CR85 1 (DMC)

S I EPI II N 1)1 PIR() a/k/a BLach

Al BI RT Cl RNADAS a/k/a “Fhe Bull’

\lNfIO I AGRASSO

RICIIARD DEHMER a/k/a “Dickie,”

VINCENT AULISI a/k/a “The Vet,”

THOMAS LEONARDIS a/k/a “Tommy.”

ROBERT RUIZ a/k/a “Bobby,”

MICHAEL TRUEBA a/k/a “Mikey,”

SALVATORE LAGRASSO,

MICHAEL NICOLOSI,

ROCCO FERRANDINO, and

JULIO PORRAO

I)e lendants,

DENNIS M. CAVANAUGH. U.S.D.J.:

This matter comes before the Court upon Motions by Defendants Julio Porrao (“Porrao”)

(ECF No. 185), Michael Trueba (“Trueba”) (ECF No. 190), Salvatore LaGrasso (“S. LaGrasso”)

(ECF No. 191, 192, 193, 196), Albert Cernadas (“Cernadas”) (ECF No. 194), Richard I)ehmer

( Dchmei ) (FE F No 195), Stephen Depiro ( Depno ) (ECI No 197), Rocco Feriandrno

( I ciiandino ) (EC I No 198), Ehomas Leonardas ( ‘Leonardis ) (LE F No 199) Vincent Aulisi

(“Aulisi”) (ECF No, 200), Nunzio LaGrasso (“N. LaGrasso”) (ECF No. 201) and Robert Ruiz

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(“Ruiz”) (ECF No. 202) (collectively, “Defendants”). Oral argument was heard before the Court

on February 12. 2012. After carefully considering all the written submissions and arguments of

parties, based on the following and for the reasons expressed herein, Defendants’ motions are

granted in part and denied in part.

L BACKGROUND

United States v. Depiro is 103 count indictment against 14 individuals. (g Second

Superseding Indictment, Dec. 12, 2012, ECF No. 149). The first count of the 103 count

indictment charges a racketeering conspiracy against four individuals. Depiro, Cernadas. N.

LaGrasso and Dehmer and 140 Racketeering Acts. Racketeering Acts I through 137 allege

various extortions against Cernadas (Racketeering Acts 1-94) and N. LaGrasso Rackctcering

Acts 95- 137). Racketeering Acts 138 through 140 allege various gambling ollenses against

Dehmer and Depiro. Count 2 charges Dehmer and Depiro with a second racketeering conspiracy

to collect unlawful debts.

Count 3 alleges a non-RICO extortion conspiracY against 12 individuals: relevant to the

motions at hand. Dehmer, Depiro, Cernadas, N. LaGrasso. S. LaGrasso. Leonardis, Ruiz and

Trueba. Counts 4 through 89 charge the substantive offenses of extortion on various dates

involving various “John Does.” The extortion scheme is charged in the Count I RICo

conspiracy and Count 3 Hobbs Act conspiracy. The Count 1 RICO defendants, 1)epiro, Cernadas

and N. LaGrasso, are alleged co-conspirators of the Count 3 non-RICO defendants (Aulisi,

Leonardis, Ruiz, Trueba, S. LaGrasso, Nicolosi, Ferrandino and Porrao). Among the numerous

alleged extortion victims of this scheme, the Indictment alleges eight specific persons. identified

as lohn Doc 1 through ho ere extortcd b both RICO and non-RICO dJLnd mts it

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varying times over the length of the conspiracy. The substantive extortion counts (Counts 4

through Counts 89) all arise out of the same alleged extortion conspiracy. and are alleged against

RICO and non-RICO defendants alike. In addition, Count 90 charges Ruiz with obstruction of

justice arising from the actions he allegedly took to conceal the extortion scheme when law

enforcement’s investigation became overt. Counts 91 through 103 charge various gambling

offenses against Dehmer and Depiro.

All Defendants are charged with extortion; none are charged with crimes different in

nature or degree. The indictment alleges that both types of conduct at issue, extortion and illegal

gambling, were perpetrated on behalf, and for the benefit, of the Genovese organized crime

family.

ii. DISCUSSION

Defendants make multiple pretrial motions, The. Court will address them each in turn.

A. Motion for Severance

DePiro, Cernadas, Dehmer, Aulisi, Leonardis, Ruiz, Trueba, S. LaGrasso, Ferrandino,

and Porrao move for the Court to sever the extortion conspiracy count and its related offenses

from the RICO counts and other unrelated charges to ensure a fair trial. At oral argument, the

Court determined that all Defendants were seeking two trials: one trial for Counts 3-89. and

another trial for Counts 1—2 and 90—103. S. LaGrasso. Dehmer. Ruiz and Porrao also request that

their individual trials be severed from the other defendants.

Federal Rule of Criminal Procedure 14(a) allows for a district court to order severance if

the joinder of offenses will prejudice a defendant. FED. R. CRIM. p. 14(a). The decision

whether to sever claims is a highly discretionary one. United States v. Urban, 404 F.3d 754. 775

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(3d Cir, 2005). The public interest generally favors joint trials. United Slates v. Eufrasio, 935

F.2d 553, 568 (3d Cir, 1991). indeed, a court should grant a severance “only if there is a serious

risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent

a jury horn makmg a reliable judgment about guilt or innocence Zafiro v United States 506

U.S. 534, 537 (1993). Defendants seeking a severance bear an especially “heavy burden.”

United States v, Console, 13 F.3d 641, 655 (3d Cir. 1993). ‘[Djefendants are not entitled to a

severance merely because they may have a better chance for an acquittal in separate trials,”

Lihan 404 1 3d it 775 ‘1 he mcie possibility of piejudice is also not cnough Sec e g , Umtcd

StatLs Vallci 392 led App\ 919 926 (3d Cii 2009) (iejccting algumcnts toi sc\elaflcL. that

“evidence was so horrific it had to spillover into the jury’s mind” and that “specter of violence

against vitnesses vvas highly prejudicial ), see also United States ‘v Reicheiter, 647 F 2d 397

400 (3d Cir. 1981) (“Mere allegations of prejudice are not enough”). Nor is a severance

warranted “solely because the evidence in regard to certain counts is more damaging than

c” ldcncL in iLgaids to othei counts United States x Bomman, 559 1 3d 150, 156 (3d Cu

2009). Instead, in order to obtain a severance, a defendant must demonstrate that “not only

would the court abuse its discretion if it denied severance, but also that the denial of severance

would lead to clear and substantial prejudice resulting in a manifestly unfair trial,” United States

v. Lore, 430 F.3d 190, 205 (3d Cir. 2005).

Defendants argue that at its core, the Government’s case is a Hobbs Act extortion ease, as

such allegations comprise the vast majority of the Indictment, spanning Counts 3 through 89.

(See g., Ferrandino Br., ECF No. 198; Cernadas Br., ECF No. 194). The 1)efendants argue that

the “spillover prejudice” that would occur if’ all counts were tried together would handicap both

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the RICO and non-RICo Defendants at trial. Cernadas, with whom Depiro joins, illustrates the.

main argument:

The sensational allegations about the history of organized crime and its use of

violence contained in the racketeering charge will interfere with Mr. Cernadas s

ability to achieve a fair trial on the core allegations in the case the extortion

conspiracy and related substantive extortion offenses — as well as the ability of his

co-defendants who are not named in the racketeering offenses to obtain a fair trial

on the offenses with which they are charged.

(Cernadas Br. 9-10, ECF No. 194)

Defendants argue there will be spillover prejudice in three regards: 1) from the gambling

and the references to gambling; 2) from the extortionate collection of gambling debts as opposed

to the extortion of union members; and 3) references to organized crime and the (lenovese

family, and the manner and means in the RICO counts (Counts I and 2). (Sec Transcript of Oral

Argument (“Tr.”). Feb. 12. 2013. 12:21-25 - 13:1-2).

The Court disagrees. Defendants claims of prejudice are insufficient to support severance.

Merely alleging prejudice—including allegations of spillover prejudice similar to those made

here—is insufficient to support a severance request. See. e.g.. United States v. Walker. 392 Fed.

Appx. 919. 926 (3d Cir. 2009) (rejecting arguments for severance that “evidence was so horrilic

it had to spillover into the jury’s mind” and that “specter of violence against witnesses was highly

piLjudicial ) United States ‘ Kenn 462 F 2d 1205, 1218 (3d Cii 1972) ( th mci possihilit’y

that in a joint trial some evidence may be admitted against one defendant which is inadmissible

against another is not in itself a sufficient reason for multiple trials growing out of a closely

related series of transactions, The prospect that certain evidence will be admissible against one

dctendant hut not against another is a feature of all joint trials ) Heie thue is substantial oerl ip

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of witnesses, co-conspirators and evidence, The charges against Defendants are also consistent:

all Defendants are charged with some type of extortionate conduct, whether that be the extortion

of dockworkers or the extortionate collection of credit. Thus this case does not pose a risk of

“spillover” prejudice to “defendants whose alleged activities did not include the sort of violent or

heinous o[tLnses with which some of their biethrLn are ha1gLd Umtd States v Gallo 668 I

Supp. 736, 750 (E.D.N.Y. 1987). The Government also notes that even if the trials were severed,

it would be permitted to prove the role of each co-conspirator, the relationships between co

conspirators and the objectives of the conspiracy at a separate trial. gg Zafiro, 506 U.S. 534,

540 (1993) (“While an important element of a fair trial is that a jury consider only relevant and

competent evidence bearing on the issue of guilt or innocence, a fair trial does not include the

right to exclude relevant and competent evidence,”) The Government argues it is entitled to

present a complete picture of the ILA extortion conspiracy. including that the objective of the

conspiracy was to enrich the Genovese organized crime family, regardless of whether a RICO or

Hobbs Act conspiracy charge is alleged. See, e.g., United States v. Heilman, 377 Fed. Appx.

157, 199 (3d Cir, 2010) (holding “joint trials of defendants charged in a single conspiracy aid the

fact finder in determining the full extent of the conspiracy.”) The Government notes “regardless

of status differences between members in the same conspiracy, at the end of the. day, it’s the same

conspiracy. The objectives ofthe conspiracy are exactly the same. “(Tr. 43: 5-7). The Court

agrees.

Additionally, any risk of prejudice arising from a joint trial can be cured by appropriate

limiting instructions. Defendants argue that the amount of limiting instructions and the frequency

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with which a jury at trial would hear them would be unduly confusing and ultimately ineffective.’

This Court disagrees. Here, the evidence is of the type that can be cured with proper instructions.

Such instructions regularly direct jurors “to compartmentalize the evidence by considering the

evidence separately as to each defendant and each count.” United Slates v. Lore, 430 F.3d 190,

205-06 (3d Cir. 2005). In Zafiro, for example, the Supreme Court affirmed that district court’s

denial of severance where the court “instructed the jury that it must give separate consideration

to each individual defendant and to each separate charge against him, Each defendant is entitled

to have his or her case determined from his or her own conduct and from the evidence that may

be applicable to him or to her.”’ Zaliro, 506 U.S. at 541 (internal citation omitted). This Court in

United States v. Bergrin agreed: “Bergrin’s allegations of prejudice. while perhaps having some

basis. are not of such a degree that they necessitate severance, especially when the Court is more

than capable of fashioning an appropriate limiting instruction if needed.” (United States. v.

Bergrin, Transcript of Sept. 12, 2012, See Exhibit A to Gov,’s Opp’n Br. ECF No. 223-1 at *44,)

‘At oral argument. Defendants pointed the Court’s attention to a Sixth Circuit case.

United States v. Blackwell, 459 F,3d 739, 762 (6th Cir. 2006) (internal citations omitted), \\here

the Court slated:

Typically, the danger of guilt transference “can be cured with a cautionary

instruction to the jury that if it finds multiple conspiracies. evidence relating to

one conspiracy cannot be considered in examining another conspiracy.” However,

the more evidence presented at trial that is unrelated to the defendants conduct. or

a conspiracy in which the defendant took part, the less likely instructions are to

cure the danger of guilt transference,

l3Iackwell dealt with a prosecution for insider trading, and the allegation on appeal was a

variance: that the evidence established two separate conspiracies rather than one. The jury was

instructed” if acts were done or statements were made by someone whom you do not [md to he a

member of the conspiracy. they may be considered by you as evidence only against the person

who did the acts or made the statement,” However, the Court goes on to say that “we presume

the jury followed these instructions” and concluded that the jurY did not improperly “transfer

guilt” to Blackwell from the other defendants “without first finding that the defendant in question

conspired with Blackwell.” ,.at 763.

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Bergrin had claimed “prej udice on the Kemo Murder Counts because of the volume and nature

of the evidence that may come in on the RICO counts,” but the Court found “that the I ury can

compartmentalize the evidence of each of the charges and ensure a fair trial” despite the ‘large

volume of evidence and numerous witnesses that the jury will hear and consider on various

claims.”

Additionally, in the case at bar, the potentially prejudicial Rule 403 and 404(b) evidence

presented at trial will only relate to some of the Defendants, Any evidence presented against one

Defendant would be distinguishable from the other Defendants; for example, there is no

prejudice to Defendant #2 if a victim testifies that Defendant #1 extorted him, And, iflimiting

instructions are given, the Third Circuit has held that juries are presumed to follow Court

directions absent compelling evidence that the volume of evidence will overwhelm and confuse

thjuiy 5cc e g , Umted States v Hakim, 344 F 3d 324 330 (3d Cir 2003) ( Wc bcgm our

analysis with the presumption that juries follow instructions given, by district courts.” (citing

United States v. Newbv, 11 F.3d 1143, 1147 (3d Cir. 1993)).

B. Motion for Bill of Particulars

DePiro, Cernadas. N. LaGrasso, Dehmer. Aulisi. Leonardis. Ruiz. Trueba. S. LaGrasso.

and Ferrandino move for a bill of particulars. Specifically, most Defendants ask for three

categories of information: 1) the identity of the John Does in the indictment: 2) the identity of all

unindicted co-conspirators and aiders and abettors; and 3) the date, time and place pertaining to

each alleued extortion.

Federal Rule of Civil Procedure 7(1) provides a court with discretion to direct the

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government to tile a bill of particulars. The “purpose of a bill of particulars is to inform the

defendant of the nature of the charges brought against him to adequately prepare his defense, to

avoid surprise during the trial and to protect him against a second prosecution for an inadequately

dLsu ibd ol nse United States v Addonizio, 451 F 2d 49, 63-64 (3d C ir 1971) (citations

omitted). it is “firmly established” that ‘a defendant is entitled neither to a wholesale discovery

of the Government’s evidence . . . nor to a list of the Government’s prospective witnesses.” ij at.

64 (citations omitted) Umted States v Kenny 462 F 2d 1205 1212 (3d Cu 1972) (noting a

defendant may not present a “set of detailed interrogatories in the guise of a bill of particulars.’);

UnliLd Statcs v Aimocida 515 F 2d 49 54 (3d Cir 1975) (dclcndant s iulucst loi th when

where and how’ of any overt acts not alleged in the indictment was tantamount to a request for

wholesale discovery of the Government’s evidence,’ which is not the purpose of a bill of

particulars”).

The government argues that Defendants have been supplied with the central facts of this

case via the details set forth in the Indictment and the substantial discovery that has been

ploduLcd to date g United States v Vastola 670 F Supp 1244 1269 (D 1 1987) 1 his

Court agrees. As the functions of a bill of particulars are “more akin to the functions of an

indictment than to a discovery,” Defendants’ motions are denied. United States v. Smith, 776

F.2d 1104, 1111 (3d Cir. 1985).

C. Motion to Suppress Wiretaps

Cernadas. N. LaGrasso, Dehmer, Aulisi, S. LaGrasso, and Ferrandino all move to

suppress evidence of intercepted recorded conversations obtained from four sets of Title III

applications. (I) Six cell phones from July 2009 through February 201 0; (2) live cell phones

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from October 2006 through May 2007; (3) “roving” wire communications to and from various

public telephones in New Jersey from August 1998 through November 1998 targeting Tino

Fiumara and (4) Seven cell phones and four locations with electronic hugs during 2000 through

2002. N. LaGrasso, with whom Cernadas, Depiro and Ferrandnio join, moves to suppress all the

above reference Title Ill interceptions and the fruits of the evidence on the grounds that the

applications were statutorily and constitutionally deficient, Dehmer argues that the wiretaps

should be suppressed because no probable cause existed as there were unreliable cooperating

witness; and also joins in with other Defendants motions.

Probable cause to authorize a wiretap “is established if the totality of circumstances’

contained in the affidavit indicates a probability of criminal activity and that evidence of the

criminal activity could be obtamed through the use of electronic surveillance.” United States v.

\mhiosio 898 1 Supp 177 181 (5 D N Y 1995) (quoting l nitcd StcitL’ Rovcl1 903 1 2d

899 (2d Cii 1 990)) see, e g Umted States Squiticn 688 F Supp 1 63 1 72 (D N 1 1988)

(discussing the totality of the circumstances” test as the appropriate standard for evaluating the

probable cause requirement for a wiretap application). Probable cause exists if the facts in the

supporting affidavit are “sufficient to warrant a prudent man in believing” that evidence of a

crime would be disclosed through the proposed wire surveillance. Beck v. Ohio, 379 U.S. 89, 91

I 964). “Any doubts as to the existence of probable cause should be resolved in favor of

upholding the authorization,” Ambrosio, 898 F. Supp. at 1 8 1.

First, N. LaGrasso argues that the 2009-20 10 wiretaps should he suppressed because the

applications misrepresented necessity. He argues the applications failed to properly advise the

wiretap judge of the cooperation and breadth of the multi-agency parallel investigation, and that

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the Government did not use alternative means prior to getting the wiretap. Additionaflv, N.

LaGrasso argues that the wiretap was not properly minimized.

Regarding to the 2006-2007 wiretap, N. LaGrasso argues that the Government lacked

probable cause and necessity to justify the original wiretap. 2He also argues that normal

investigative techniques were not exhausted before the government applied for the October 17,

2006 Ragonese phone wiretap application. N. LaGrasso also alleges that the 2006-2007 affidavits

in support of wiretaps may have failed to disclose all cooperating witnesses and sources.

N. LaGrasso requests that this court suppress all interceptions resulting from the August

20, 1 998 Order, and its extension Orders, to intercept roving wire communications by Tino

Fiumara at various pay telephone facilities in New Jersey. Defendant argues that the roving

wiretap Order failed to comply with the requirements of 18 U.S.C. § 2518(12).

N. LaGrasso also argues that the 2000-2002 wiretap interceptions should he suppressed as

“during the review of the nearly four decades worth of discovery, it has become evident that the

wiretap judges may not have been provided with all of the relevant inftrmaiion pertaining to

alternative investigative techniques. cooperating and potential undercover witnesses.” (N.

Lagrasso’s Mem.. ECF No.201).

2The 2006-2007 wiretaps included five sets of interceptions on live separate cell phone

numbers, subscribed to Patsy Ragonese (“Ragonese phone”), Daniel Dellisanti (“Dellisanti

phone”), Louis Rizzo (“Rizzo phone”), Mary Hayden (Hayden phone”) and Moe Mathewes

(“Mathewes phone”).

5That section provides in relevant part: “An interception of a communication under an

order with respect to which the requirements of subsections (1 )(b)(ii) and (3 )(d) of this section do

not apply by reason of subsection (11 )(a) shall not begin until the place where the

communicalion is to he intercepted is ascertained by the person implementing the interception

order” (emphasis added).

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The Government asks the court to deny all motions to suppress wiretaps, It argues the

wiretap affidavits demonstrated probable cause and amply discussed the necessity of the

wiretaps

As to the 2009-2010 wiretaps, the Government argues that the affidavits established

probable cause, as the initial wiretap affidavit set forth a detailed recitation of information that

had been provided by a cooperating witness regarding Dehmer’s and Depiros association with

the Genovese crime family, the transcript of an excerpt of a consensually recorded telephone call

pertaining to gambling activity, as well as toll analysis that established probable cause that

Dehmer was using the telephone to manage his bookmaking and poker businesses, and that he

was engaged in conversations with Depiro regarding racketeering activity. With regards to

necessity, the Government contends that the affidavits presented the alterative methods

considered and used, and explained the shortcomings of each technique in the context of the

investigation. In sum, the Government argues that the wiretap affidavits amply and accurately

discussed the alternative investigative techniques and inform[ed1 the authorizing judicial officer

of the nature and progress of the investigation and of the difficulties inherent in the use oi normal

la\\ LntolcLmLnt mLthods United States ‘ I oncs 901 1 2d 20 231 (2d (ii 1990) (iniLin ii

quotations omitted).

Whether the minimization requirements of Title III set forth in 18 U.S.C. § 2185(5) have

been met is a fact specific inquiry that focuses on the reasonableness of the actions of the agents

conducting the surveillance. $ Scott v. United States, 436 U.S. 128, 140-41 (1978). N.

LaGrasso argues that a high percentage of the calls recorded from his cell phone were personal in

nature, and constituted pervasive violations. To determine if a conversation is or is not pertinent,

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the Supreme Court has made clear that a reviewing court should determine whether the agents’

actions were objectively reasonable in light of the facts and circumstances that confronted them

at the time, and not based upon the agents’ subjective intent. Scott, 436 U.S. at 136-37. Scott

also held that “when the investigation is focusing on what is thought to be a widespread

conspiracy more extensive surveillance may be justified in an attempt to determine the precise

scope of the enterprise.” ld.at 140. Further, both the Third and Second Circuits have held that

calls “lasting less than two minutes need not be minimized. . . . Thus, because all calls between

Giordano and Jones were less than two minutes in length, the government was not required to

mimmize them Umtcd States v Giordano, 259 F Supp 2d 146, 155 (D Conn 2003) (citing

United States v. Capra, 501 F.2d 267, 276 (2d Cir. 1974) (observing that two minutes is too

brief a period for an eavesdropper even with experience to identify the caller and characterize the

con\clsaUon ) (mteinal quotation marks omittcd)), accoid Aimocida i ‘ F d at 42-46 UmtLd

St itcs Ynbiough 527 F 3d 1092, 1098 (10th Cir 2008)( [I]n analyzing thc ieasonablcncss of

the governments minimization efforts, we exclude calls under two minutes,”).

For the 2006-2007 wiretaps, the Government argues that it has met its burden to show

probable cause and necessity to justify the Ragonese phone wiretap and that there was probable

cause to intercept the Hayden phone. Additionally, the 2006-2007 wiretap aflklavits set torth a

full recitation of the facts, The Government claims there were numerous sources providing

inflarmation about Ragonese’s and Dellisanti’s criminal activity from 2001 through 2006 and

there was substantial corroboration of that information and the continued use of the Ragonese

Phone in furtherance of that activity, Judge Jones had a substantial basis for concluding that they

were engaged in ongoing criminal activity. The continuous, ongoing nature of the subjects’

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criminal activity also provides a substantial basis for Judge Joness conclusion that the

information provided was not stale, as one of the wiretap cases upon which the defendants rely

provides. See United States v. Rowell, 903 F.2d 899. 903 (2d Cir. 1990) (“Given the continuous

nature of narcotics conspiracies and Rowell’s statements to the Florida undercover officer about

his on-going marijuana distribution operation. the approximately 1 8-month delay between

procuring the informants’ statements and seeking the wiretap warrant did not render the

information stale,”). The 10/17/06 Lewis affidavit establishes probable cause to believe that

interception of the Ragonese Phone would relate to the specified offenses.

Defendants also argue that the Government failed to exhaust other investigative

techniques, specifically the use of surveillance, subpoenas and witness interviews, before

applying for Title III interception of the Ragonese Phone. The Government states that in this

case, the 1 0/1 7/06 Lewis Affidavit provided Judge Jones with a substantial basis for her

conclusion that other investigative techniques are not feasible. Here, the affidavit detailed in

several places the subjects’ methods of avoiding surveillance and the inability of law

enforcement to overhear criminal conversations, including the subjects’ engaging in walk-talks

and meeting in public 1aces apart from others, despite the fact that both meeting participants had

just spoken on the telephone.

Defendants argue that evidence from the Hayden Phone should be suppressed because (1)

the application flowed from the allegedly deficient affidavits for the Ragonese Phone and other

allegedly deficient Title III applications; (2) the Hayden Phone Title Ill application lacked

probable cause in that it failed to establish that interceptions would relate to the specified

offenses; and (3) alternative investigative techniques were not exhausted. (N. LaGrassoMem., at

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39-41). Defendants also argue that the suppression of the Hayden Phone also warrants

suppression of the Mathewes Phone recordings as improperly gained evidence.” (Id. at 39). The

Government alleges that the interception of the Ragonese Phone was law tiil. Moreover, the

Government claims that agents were entitled to rely, and did rely in good faith, on Judge Jones’s

authorization of the interception of the Ragonese. Dellisanti and Rizzo Phones. As with the

Ragonese Phone, the defendants offer no evidence that agents acted in bad faith in using

interceptions from the Dellisanti and Rizzo Phones in applying for Title III interception ofthe

Hayden Phone or the Mathewes Phone, The Government also states that the defendants claim

that the Government relied upon the information included in the earlier Ragnoese phone tap and

subsequent Rizzo and Dellisanti phone taps to support the Hayden tap is untrue, The Government

then provides independent evidence establishing probable cause that communications intercepted

over the Hayden Phone would relate to the specified offenses, including information that

Coppola and other Genovese members were involved in illegal gambling, in addition, the

2/15/07 Lewis Affidavit detailed information corroborated by numerous sources that Paul

Coppola was collecting extortion payments relating to the Genovese family’s (including Michael

Coppola’s) extortion of the unions and businesses servicing the New Jersey ports and that Paul

Coppola and Dellisanti engaged in numerous anti-surveillance techniques. including using

pavphones. calling cards and pagers in order to speak with the person using the Hayden Phone.

during the time period sources claim that Paul Coppola received these extortion payments.

Defendants also complain that the Hayden Phone affidavit failed to establish probable

cause that a targeted individual would use the phone during the period requested for

interceptions. (N. LaGrasso Mem., at 40). The Government counters. stating that this allegation

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plainly lacks merit as the 2/15/07 Lewis Affidavit is ‘replete with facts establishing current

criminal contact among the subject individuals.”

Finally, Defendants claim that the wiretap affidavits in 2006 and 2007 may have failed

to disclose all cooperating witnesses and sources,” accusing the government of appearing to

“cherry-pick information” and failing to “disclose the full scope and purpose of the

investigation.” (N. LaGrasso Mem., at 41). The Government argues that the Defendants allege

no facts to support their speculative assertions and their demand for the Government to “verify”

that the entire federal government and ‘other law enforcement agencies were not employing any

additional cooperating witnesses and/or undercover agents at the time of the affidavits for those

wiretaps” N. LaGrasso Mern., at 42) is without a basis in law.

The Government next contends that the 1998 “roving wiretap” was not overbroad and

satislied the requirements of 18 U.S.C. § 2518(12) and the Fourth Amendment.

Defendants argue that the New Jersey Roving Wiretap Orders failed to stipulate that no

interception could occur unless visual surveillance indicated that Tino Fiumara was present. (N.

LaGrasso Mern., at 44). Defendants argue the orders therefore violated the requirements of 1$

U.S.C. § 2519(12) and failed to meet the particularity requirements of the Fourth Amendment.

(id). The New Jersey Roving Wiretap Orders contain the following language:

IT IS . . . ORDERED that Special Agents of the Federal Bureau of Investigation

C’FT3I”), and individuals operating under contract with the Government under the

supervision of the FBi supervising agent are authorized and directed, consistent

with the Application approved by an appropriately designated official of the

Ciiminal Daision United States Department of Jusflce, vhom the Attoine

General has specifically designated to exercise the power conferred by 18 U.S.C.

§ 2516, to . . . intercept and record roving wire communications to and from

various and changing pay telephones located in Ocean and Monmouth Counties.

New Jersey and utilized by TINO RICHARD FIUMARA.

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(N. LaGrasso Exs. BE at ILA 2192-93, FF at ILA 2328-29, and GO at ILA 2507-08) (emphasis

added), The Government argues that based on this language. the wiretap order dearly

incorporates the contents ofthe underlying applications, which limits the agents’ ability to

intercept Tino Fiumara’s communications to instances in which Fiumara is confirmed, by

physical surveillance, to be using one of the New Jersey payphones equipped with eavesdropping

equipment. (See, e.g.. 1LA 2308 (‘interception will only commence when an agent engaging in

physical surveillance observes TINO RICHARD F1UMAR\ at a pay telephone or entering a

building . . . where he is believed to have used a pay telephone in the past”)). Furthermore, the

applications also contain provisions calling for the immediate suspension of interceptions when

“it is determined through voice identification, visual observation, or otherwise, that TINO

RICHARD FIUMARA, when identified, is not a participant in the conversation.” (Id.). In sum,

the government argues that because the New Jersey Roving Wiretap Orders incorporate the

supporting applications which include the specificity iequiicd by 18 U S C 25 18(12) and thc

lourth Amendment, they are not unconstitutionally overbroad and should not he suppressed.

Defendants assert that the wiretaps from the waterfront investigation conducted in 2000

to 2002 should be suppressed. The Government argues that as an initial matter, none of the

Defendants in this case have standing to challenge these wires as none of them were intercepted.

In addition, the unsupported assertion that the wiretap applications failed to provide the judges

with all relevant information regarding necessity and possible sources of information are vague.

speculative and do not form a basis for suppression or further inquiry.

This Court agrees with the Government’s characterization of the affldavits and wiretap

applications, and thus denies Defendants’ motions to suppress the various wiretaps.

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D. Motion for Additional and Immediate Production Brady, Giglio, Jencks Act and

404(b) Material

Defendants Depiro. Cernadas, Aulisi, N. LaGrasso. Leonardis. Ruiz. Trueba. Ferrandino.

and Porrao make various motions in relation to discovery material.

Defendants argue that it is a “basic proposition of law that the Government has an

obligation to provide defense counsel with evidence that is in its possession. custody and control.

that relates to its obligations under Brady and Giglio. . . and Jencks, and also impacts its

obligation under Rule 16(a)(i)(E) as it pertains to this case.” (Tr, 52:9-15).

In Biath the Supiernc Couit held that ‘ the suppression by thc piosccutaon of cvidcncc

favorable to an accused upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” jra’\.

Maryland, 373 U.S. 83, 87 (1963). In Giglio v. United States, 45 U.S. 150, 154 (1972), the

Supreme Court held that the government must also disclose material which affects the credibility

of a potential witness. The Jencks Act requires the Court, on a defendant’s motion, to order the

government to produce witness statements [ajfter a witness called by the United States has

testiIed under direct examination.” 1 8 U.S.C. § 3500(b).

As a threshold matter, the Court notes that the Government has acknowledged their

obligations in regards to Brady and Jencks Act material. The Government recognizes the

“salutary practice” of “delivering Jencks material to defense counsel sufficiently in advance of

the conclusion of direct examination to obviate trial interruptions.” Murphy. 569 F.2d at 773 n,5,

in this case, given the number of witnesses expected to be called, the Government has agreed to

produce Jencks material at least one week before the testimony of each witness, The Court so

18

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orders. Regarding to Brady and Giglio material in the Government’s actual possession. the Court

expects the Government to fulfill its obligations in the appropriate time. The Government will

disclose all Giglio material at least one week prior to each witness’s testimony.

Additionally, at this time, the Government has not determined what. if any. Rule 404(b)

evidence it intends to introduce at trial. (ECF No. 223). The Government has acknowledged its

obligation to make pre-trial disclosure of such information, and consistent with the practice of

this Court will do so at least ten (10) days before trial if it determines that it will seek to offer any

evidence under that rule.

Finally, in their motions, and more succinctly at oral argument, Defendants argued that

the Government, in their cooperation with other government agencies, has not fully disclosed all

the relevant evidence that Defendants are entitled to under Brady, Gigiio, and the Jencks Act.

Specifically, N. LaGrasso requests “any and all information developed by the Waterfront

Commission of New York Harbor during the time frame charged in the Indictment pertaining to

the charges.” (ECF No. 201 at 6). The Government states in their Opposition papers:

The defendants are simply incorrect to assert that New Jersey authorities were

‘working with’ the federal investigators tasked with the investigation. In fact, there

was at no time a joint investigation into the Genovese crime family’s waterfront

rackets by the state and federal authorities. Rather, although the investigators

occasionally shared limited information, the law enforcement officials working on

their respective state and federal investigations did not have real-time access to the

information gathered by the other, and the federal government was not in a position

to direct the state investigators.

N. LaGrasso notes “when you put the superceding Indictment together with the original

Indictment, there are 18 defendants.” (Tr. 57:15-17). N. LaGrasso argues that “the Waterfront

Commission has played an active role in the investigation,” and at oral argument. produced a

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document from the \Vaterfront Commission report for the 2010-201 1 flsca year. (Sec [‘he

Vvatertront Commission of New York Harbor Annual Report 2010-20 1 1 (“Commission

Rcpoi t ) a allabiL at hnp / ‘cn h 01 g ‘docs/V (\\ I I_20 11 \nnu ii iilt) I hc.

report states:

[Tihe Commission has not only become the central repository of information about

criminality and security in the Port of New York -New Jersey, but also a skilled

investigative agency. highly regarded by our law enforcement partners. This ear. the

Commission led or significantly participated in investigations and prosecutions that

resulted in the indictment of key organized crime figures and corrupt union officials.

\korking with New York and New Jersey state and federal authorities, the

Commission engaged in court-ordered electronic and physical surveillance, executed

search warrants and developed confidential sources and informants which resulted

in the arrest of 160 individuals, including 18 in the highly publicized January 2011

“mob takedown.” The Commission provided critical records, surveillance reports and

photographs and was involved in the investigative and prosecutorial planning ofthat

matter. Participation was not limited to our detectives alone, as Commission

attorneys conducted over forty interviews under oath to supplement the criminal

investigations.

Prosecutors have an obligation to make a thorough inquiry of all enforcement agencies

that had a potential connection with the witnesses, United States v. Thornton, 1 F.3d 1 49, 158

(3d Cir, 1 993). However, “prosecutors are not required to undertake a ‘fishing expedition’ in

other jurisdictions to discover impeachment evidence. For example, prosecutors are not obligated

to learn of’ all information ‘possessed by other government agencies that have no involvement in

the investigation or prosecution at issue.”. United States v. Risha, 445 F.3d 298, 304 (3d Cir.

2006)(quoting United States v. Merlino, 349 F.3d 144, 154 (3d Cir. 2003)).

The Third Circuit has held that, under certain circumstances, evidence possessed by state

agents may he “constructively possessed” by a federal prosecutor such that the prosecutor has a

duty to obtain that evidence and disclose it to the defense. United Stales v. Risha. 445 F.3d

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298, 303-06 (3d Cir.2006). Constructive possession has been defined by the Third Circuit “to

mean that although a prosecutor has no actual knowledge. he should nevertheless have known

that the material at issue was in existence. Accordingly, we consider whether the prosecutor

knew or should have known ofthe materials even though they were developed in another case.”

United States v. Joseph. 996 F.2d 36, 39 (3d Cir.l993) (emphasis added).

In Risha, the Third Circuit considered whether it was proper to impute to a federal

prosecutor the knowledge of state agents that a key witness who had testified against Risha in a

federal criminal case expected leniency for an unrelated state criminal charge in return for his

cooperation in the federal case. Risha 445 F. 3d. The key in Risha is that no evidence was

presented that the federal prosecutors in Risha’s case had “actual knowledge” of the key

witness’s expectation or of a pending plea agreement. The Court held that under certain fact

findings, such knowledge might be imputed.j at 299.

in addressing the issue of cross-jurisdiction constructive knowledge, the questions that

must he asked are “ (I) whether the party with knowledge ofthe information is acting on the

government’s ‘behalf or is under its ‘control’; (2) the extent to which state and federal

governments are part of a ‘team,’ are participating in a ‘joint investigation’ or are sharing

resources: and (3) whether the entity charged with constructive possession has ‘ready access’ to

the evidence.” United States v. Risha, 445 F.3d at 304.

First, there is the question whether a party with actual knowledge of the impeachment

information was under the federal government’s control or acting on its behalL See. e.g..

Moreno-Morales v. United States, 334 F.3d 140, 146 (1st Cir. 2003) (finding that “the Puerto

Rico Senate was not acting on behalf of the federal government”): United States v.

21

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Leos-HermosiHo, No. 98-50546, 2000 WL 300967 at *3, 2000 U.S. App. LEXIS 5012 at *8 (9th

Cir. Mar. 22, 2000) (holding that even though an officer “was not employed by ... the idera1

government, he was no less an agent of the federal government; he was acting on its behalf and

subject to its control”). “What is at issue here, at least generally, is the intermingling of state and

federal forces.” Risha 445 F. 3d at 304. While the record is not clear on how much intermingling

occurred, the Waterfront Commission explicitly states in their official report that they were

involved in the investigative and prosecutorial planning of the matter at hand. (Commission

Report). While it is unclear whether the Commission was under the federal government’s

control, it is clear it was acting on behalf ofthe federal government and its agents.

Related to the question whether an agent is acting on behalf of the government is the

question whether the forces are part of a team or are engaged in a joint effort. See, United

StItes\ l3eeis 1891 3d 1297, 1303-04(l0thCir 1999), Moon Head 28 F 3d 1301 1310

(11th Cir.2002) (refusing to impute to a Georgia prosecutor evidence possessed by a Tennessee

l3ureau of Investigation agent because the agencies shared no resources or labor); United States

v. Brooks, 966 F.2d 1500, 1503 (D.C.Cir.1992) (holding that the prosecution must search tiles of

other branches of government if they are closely aligned with the prosecution or have a “close

working relationship”). Here, it appears there is a close relationship between the state and federal

government. The Waterfront Commission stated that it “led or significantly participated in

investigations and prosecutions” that led to indictments, including the one at issue. (Commission

Report).

The last question is whether the evidence in question was readily available to the

prosecution. See, e.g., Kasi v. Angelone, 300 F.3d 487, 506 (4th Cir,2002); United Statesv.

Case 2:10-cr-00851-CCC Document 260 Filed 02/20/13 Page 22 of 29 PageID: 2599
Auten, 632 F.2d 478, 481 (5th Cir.1980). The Government plainly states in their brief that “the

law enforcement officials working on their respective state and federal investigations did not

have real-time access to the information gathered by the other.” (ECF No. 223 at 62).

Balancing the above three inquiries, this Court finds that the federal government was in

constructive possession of Waterfront Commissions “critical records, surveillance reports and

phoiographs” and was “involved in the investigative and prosecutorial planning.” (Commission

Report). Based on the official report of the Waterfront Commission. it is clear that there was at

the very least a cooperative investigation between state and federal agents. although it appears

that the involvement was more coordinated, with the agencies sharing documents and

infbrmation. Thus. this Court directs the Government to provide Defendants with any l3rady,

Giglio or Jencks Act material that they are in constructive possession of from the Waterfront

Commission.

E. Motion to Suppress Surplusage in the Indictment

S. LaGrasso moves to strike (1) Mob related words; (2) catch-all phrases; and (3)

allegations of criminal activity from the Indictment. S. LaGrasso argues that the introduction of

‘La Cosa Nostra,’ ‘Genovese Family,’ ‘Mafia,’ and other mob and organized crime related names

in the preamble to the Indictment will “unmistakenly cause the jury to unnecessarily and

prejudicially consider the enterprise’s name as some consciousness or evidence of guilt.” lie

argues that as there are no allegations reciting any direct or indirect connections between

Salvatore LaGrasso and La Cosa Nostra,’ ‘Genovese Familv,’and the ‘Mafia.’ the language

should he stricken from the indictment. S. LaGrasso next moves to strike all vague, catch-all

language. arguing that such language is irrelevant and allows the jury to draw improper

23

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inferences, He moves to strike speci1cally the terms “numerous,” “among other things,”

“various,” “others,” and “criminal activities.” S. LaGrasso also moves to strike any allegations of

criminal activity in the preamble which are not alleged to be a predicate racketeering act in the

Indictment nor are alleged to be an overt act in furtherance of any conspiracy in the Indictment.

Dehmer moves to strike (1) the aliases in the caption of the indictment; and (2) any and

all mention of’ La Cosa Nostra. The caption of the Indictment has included an alleged alias for

nine of the fourteen defendants charged. Dehmer is listed as having an alias of “Dickie,” He

argues there is no reason to offer such name in the indictment, especially when some of the other

defendants are given alias names to support a crime family image. Dehmer alleges there has been

no showing that his alias is relevant, and thtis should be stricken

Additionally the indictment, numbering 143 pages and 1 72 paragraphs, makes only four

mentions of’ La Cosa Nostra, charging that La Cosa Nostra is the racketeering enterprise and that

the alleged Genovese crime family was one of the crime families that constituted La Cosa Nostra.

Such references are made in the introductory portion of the indictment. The remainder of the

indictment focuses on the alleged members’ actions and the actions of others. Dehmer alleges

that no link between the alleged Genovese crime family and La Cosa Nostra other than the

boilerplate language referenced above is mentioned: notably, beyond that initial assertion there is

not even a further reference to La CosaNostra. Dehmer argues that there is no substantive link to

La Cosa Nostra alleged, and thus any mention should be stricken from the indictment.

The Government argues that Defendants Dehmer and S. LaGrasso seek merely to sanitize

the indictment ‘without reference to controlling law, and in fact they cannot point to any

allegation in the charging instrument that is irrelevant and prejudicial.” (ECF No. 223 at 37).

24

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A district court may strike surplusage from the indictment or information. FED. R. CRIM.

P. 7(d). “This rule introduces a means of protecting the defendant against immaterial or irrelevant

allegations in an indictment or information, which may. however, he prejudicial.” Fed. R. Crim.

P. 7(d) Advisory Committee’s Note. In United States v. Hedgepeth. 434 l.3d 609. 612 (3d Cir.

2006). the Court of Appeals clarified that Rule7(d) is to be read in the conjunctive. As stated by

the Third Circuit:

Logic demands the conjunctive standard: information that is prejudicial. yet relevant

to the indictment, must be included for any future conviction to stand and

information that is irrelevant need not be struck if there is no evidence that the

defendant was prejudiced by its inclusion.

ld.The court held that a court may oni “strike surplusage from the indictment or information

when it is both irrelevant (or immaterial) and prejudicial.” N.. Accordingly, motions to strike

surplusage are rarely granted. United States v. Aguilar. 256 F. Supp. 2d306. 317 (D.N..T. 2003).

This rarity is due to the “exacting standard” described above. $.ç United States v. Giampa. 904

F. Supp. 235 (D.N.J. 1995).

This Court does not find the information in the Indictment to be both irrelevant and

unfairly prejudicial. Thus, Defendants motions are denied,

F. Motion for Leave to File Additional Motions

Pursuant to ongoing discovery, this Court grants Defendants leave to file additional

motions if they become necessary.

C. Dehmer’s Motion to Dismiss Counts I and 2

Dehmer moves to dismiss Count 1 and 2 as they pertain to him because he alleges that the

charges do not explain how he participated in the affairs of the enterprise through a pLttteI’n of

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racketeering activity. The first 137 racketeering acts in the Count One RICO conspiracy covers

23 pages of the indictment and alleges extortionate acts by co-conspirators involving the IL\ hut

no mention is macic of Dehmer.

The Government argues that both Counts contain the elements of the offenses intended to

be charged. apprise Dehmer of what he must be prepared to meet, and would allow him to plead

double jeopardy in the event of a subsequent prosecution. The indictment makes plain that it is

Dehmer’s commission of specific criminal acts in furtherance ofthe long-term goals of the

alleged enterprise that constitute his violation of RICO. The Court agrees with the Government’s

position, and Dehmer’s motion to dismiss is denied.

H. Dehmcr’s Motion to Exclude Expert Testimony

The Government proposes to present the testimony of an expert in the field of organized.

crime. Dehmer argues that testimony on La Cosa Nostra is not required for the jury to be able to

evaluate the alleged actions of Dehmer and the others, or even to assess their alleged organization

as a crime family.” This evidence will, instead, he alleges, confuse the jury by adding layer upon

layer of evidence that is unrelated to the factual allegations of Mr. Dehmer and others. He claims

such an expert would serve no probative value and only serve to unduly prejudice him and the

others.

At trial. the Government maintains it will offer agent expert testimony about the internal

operating rules of organized crime families, see United States v. Pungitore, 910 F.2d 1084.

1148—49 (3d Cir.1990), the identification of members of the Genovese and other crime families

involved in this case, see United States v, Locascio, 6 F3d 924, 936 (2d CirA 993), as well as

rules of conduct of organized crime members and associate, their code of silence, and the

26

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meaning of certain relevant jargon. ,gg United States v. Riccobene. 709 F.2d 214, 230- 31 (3d

Cir. 1983), overruled on other grounds by Griffin v. United States, 502 U.S. 46 (1991).

The essential elements for conspiracy to violate RICO requires proof that the “defendants

knowingly agreed to participate in the enterprise’ through a pattern of racketeering.” Riccobene.

709 F.2d at 220-21. In Count Two, the government must prove beyond a reasonable doubt that

the charged defendants, being associated or employed by the enterprise alleged in the

Superseding Indictment, collected an “unlawful debt,” 18 U.S.C. §1962(d).

In Daubcrt v Merrell Dow Phaimaceuticals mc, 509 U 5 579 (199) the Supreme

Court explained, “Rule 702 further requires that the evidence or testimony ‘assist the trier of fact

to understand the evidence or to determine a fact in issue.’ This condition goes primarily to

relevance.”, at 591. Although the proffered expert testimony must be relevant, or “fit,” an

issue to he determined by the jury, In re TMI Litigation, 193 F.3d 613, 670 (3d Cir. 1999), the

Third Circuit has repeatedly expressed the view that the standard for this re1evanc factor “is not

th it high In ic Paoli R R Yard PCB Litigation 35 F 3d 717 745 (3d Cii 1994) IILIL thL

proffered expert agent testimony precisely “fits” with issues of fact that must he determined by

the jury as to Counts One and Two. Thus, assuming the Government properly qualifies the

expert, such testimony will be permitted.

1. 1)ehmer’s Motion for a Pretrial Hearing on Co-Conspirator Statements

Dehmer also moves for a pretrial hearing to determine the admissibility of co-conspirator

statements, Before admitting any out of court conspirator statement, the court must flrst

determine that the government has “established the existence of the alleged connection of each

defindant with it by a clear preponderance of the evidence independent of the hearsay

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declarations.” United States v. Continental Group. Inc.. 603 F. 2d 444. 457 (3d Cir. 1979). ggt.

denied. 444 U.S. 1032 (1980).

The Third Circuit has explained that co—conspirator statements may he introduced at trial

“without a prior showing of a conspiracy based on independent evidence, subject to the

requirement that the government make such a showing by the close of its case.” United States v,

Ammar, 714 F.2d 238, 246 (3d Cir. 1983). The Government argues that a pre-trial hearing would

amount to a mini trial outside the presence of a jury; given the nature of the testimony regarding

the conspiracy. it would be forced to present most of its case-in-chief in order to show the

parlicjpaton of the defendant and declarant in an ongoing conspiracy. The Court agrees: there is

no need for a pre-trial hearing, and thus Dehmer’s motion is denied,

J. Ruiz’s Motion asking this Court to revisit its prior ruling preventing him from

communicating in any manner with anyone at the pier

At this time the Court declines to revisit its prior ruling, and the order preventing Ruiz

from communicating in any manner with anyone at the pier stands.

K. Ruiz’s Motion to Dismiss Count 90 for Improper Venue

Count 90 charges Ruiz with obstruction ofjustice in connection with a federal grand jury

investigation being conducted in the Eastern District of New York. Ruiz argues there is “no

indication in the Count itself or in any other material provided to counsel to indicate that venue is

proper for this Count in the District of New Jersey.

As the Government points out, the statute expressly permits the prosecution to he venued

in New Jersey: “A prosecution under this section or section 1 503 may be brought in the district in

which the official proceeding . . . was intended to be affected or in the district in which the

28

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conduct constituting the alleged offense occurred.” 18 U.S.C. § 1 5 1 2(i) The Government alleges

that it expects that the trial evidence will prove that Ruiz. when he became aware of law

enforcement’s investigation into the New Jersey waterfront. engaged in conduct in New Jersey to

conceal evidence representing proceeds of the extortions, Accordingly, Ruiz’s motion to dismiss

is denied.

Iv.

CONCLUSION

For the reasons stated above, it is the finding of this Court that Defendants pretrial

motions are denied in part, granted in part. An appropriate Order accompanies this Opinion.

Dated:

Original:

cc:

5 NI.

FebruaryA,2013

Clerk’s Office

All Counsel of Record

File

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