The opinion of the court was delivered by: Eduardo C. Robreno, J.
Before the Court is Defendant Ligambi's Motion to Dismiss Count One*fn1 of the Second Superseding Indictment. For the following reasons, the Court will deny Defendant's Motion.
Defendant Ligambi is one of fourteen defendants charged in a fifty-two count Second Superseding Indictment. The case emerged from a criminal investigation spanning ten years and has been twice designated a complex case due to the number of defendants and the nature and quantity of evidence, which includes over 14,000 intercepted wire and oral communications. See ECF Nos. 166, 520. Among other counts, Defendants are charged with conspiring to conduct and participate in the conduct of the affairs of the criminal enterprise of the Philadelphia La Cosa Nostra ("LCN") Family through a pattern of racketeering activity and through the collection of unlawful debts.
Defendant Ligambi moved to dismiss Count One of the Second Superseding Indictment,*fn2 which charges eleven defendants Staino, Jr. (ECF No. 392); Borgesi (ECF No. 404); Massimino (ECF No. 545); Barretta (ECF No. 574); Battaglini (ECF No. 579); Fazzini (ECF No. 589); and Licata (ECF No. 592). with a RICO conspiracy, because the allegations in the indictment fail to establish the necessary elements to sustain a racketeering conspiracy pursuant to 18 U.S.C. § 1962(d). Def.'s Mot. 1. The Government responds that the Defendant's motion must be denied because Count One sufficiently alleges a violation of § 1962 and Defendant's motion inappropriately seeks to test the sufficiency of the Government's evidence. Gov't's Resp. 3, ECF No. 494. After hearing oral argument on June 15, 2012, the motion is now ripe for disposition.
When considering a motion to dismiss an indictment,
the Court accepts as true the factual allegations contained in the indictment and determines only whether the indictment is valid on its face. See Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16 (1952). Federal Rule of Criminal Procedure 7(c)(1) requires an indictment to "be a plain, concise, and definite written statement of the essential facts constituting the offense charged." The Third Circuit has held that:
[A]n indictment [is] sufficient so long as it "(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution." United States v. Vitillo, 490 F.3d 314 (3d Cir. 2007) (internal quotation marks omitted). Moreover, "no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution." United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989).
United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007). An indictment may be insufficient when it "fails to state an offense if the specific facts alleged in the charging document fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation." United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002); see also United States v. Schiff, 602 F.3d 152, 162--66 (3d Cir. 2010) (indictment alleging "failure to rectify misstatements of others" does not, as a matter of law, state an offense under securities statute that criminalizes omissions of information). The question is merely whether the indictment put the defendants on notice as to the nature of the charges against them, and whether the facts, if proven, are sufficient as a matter of law for a jury to convict.
A ruling on a motion to dismiss is not, however, "a permissible vehicle for addressing the sufficiency of the government's evidence." United States v. DeLaurentis, 230 F.3d 659, 660--61 (3d Cir. 2000). "'Evidentiary questions'-such as credibility determinations and the weighing of proof-'should not be determined at th[is] stage.'" United States v. Bergrin, 650 F.3d 257, 265 (3d Cir. 2011) (quoting United States v. Gallagher, 602 F.2d 1139, 1142 (3d Cir. 1979)). Rather, "[t]he government is entitled to marshal and present its evidence at trial, and have its sufficiency tested by a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29." DeLaurentis, 230 F.3d at 661.
Having reviewed the legal principles governing motions to dismiss a criminal indictment, the Court turns now to the elements necessary to allege a violation of 18 U.S.C. § 1962(d). Section 1962(d) provides that "[i]t shall be unlawful for any person to conspire to violate [Section 1962(c)]." The essence of a § 1962(d) conspiracy is the agreement to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"),*fn3 that is, the agreement to conduct or participate, directly or indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity or collection of unlawful debt. See
Salinas v. United States, 522 U.S. 52, 63-66 (1997). The essential elements of a substantive RICO violation under § 1962(c) are: "(1) the existence of an enterprise affecting interstate commerce; (2) that the defendant was employed by or associated with the enterprise; (3) that the defendant participated, either directly or indirectly, in the conduct of the affairs of the enterprise; and (4) that he or she participated through a pattern of racketeering activity [as defined at 18 ...