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United States of America v. Joseph Ligambi

September 4, 2012

UNITED STATES OF AMERICA,
v.
JOSEPH LIGAMBI, ANTHONY STAINO, JR., JOSEPH MASSIMINO, GEORGE BORGESI, DAMION CANALICHIO, LOUIS BARRETTA, GARY BATTAGLINI, JOSEPH LICATA, AND LOUIS FAZZINI, DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

I. INTRODUCTION.............................................. 2

II. BACKGROUND................................................ 3

III. MOTION TO STRIKE SURPLUSAGE FROM THE INDICTMENT ......... 4

IV. MOTION IN LIMINE TO ADMIT RACKETEERING EVIDENCE.......... 13

A. Intrinsic Evidence ..................................... 16

B. Intrinsic Evidence Admissible Under 403 ................ 26

C. Evidence Admissible Under Rules 404(b) and 403 ......... 27

1. Motion to Exclude Evidence of Defendant Ligambi's Prior Bad Acts and Crimes (ECF No. 713) ......................... 35

a. Discussion .......................................... 37

i. Intrinsic Evidence ................................. 38

ii. Rule 404(b) ...................................... 42

iii. Probative Value Versus Prejudice ................. 44

b. Conclusion .......................................... 46

2. Defendant Borgesi's Second Supplemental Motion in Limine to Exclude Other Crimes Evidence Pursuant to Federal Rule of Evidence 404(b) (ECF No. 828) ............................. 46

a. Discussion .......................................... 47

i. Objection No. 1 .................................. 47

ii. Objection No. 2 .................................. 50

iii. Objection No. 3 ................................. 51

iv. Objection No. 4 .................................. 53

v. Objection No. 5 .................................. 54

vi. Objection No. 6 .................................. 56

vii. Objection No. 7 ................................. 57

b. Conclusion .......................................... 58

V. DISPOSITION OF THE MOTIONS............................... 58

I.INTRODUCTION

The Court held hearings on August 9, 2012, and August 17, 2012, to consider several of the Defendants' and the Government's motions in limine. For the following reasons, the Court will deny Defendant Ligambi's Motion to Strike from the Indictment and Bar All Reference to the History and Structure of La Cosa Nostra at Trial as well as Defendant Borgesi's Motion in Limine to Exclude Other Crimes Pursuant to Federal Rule of Evidence 404(b). ECF Nos. 561, 643, 716. The Court will grant the Government's Motion in Limine to admit the same racketeering evidence Defendants sought to exclude. ECF Nos. 648, 649. The Court also denies Defendant Ligambi's Motion to Exclude Evidence of Defendant Ligambi's Prior Bad Acts and Crimes. ECF No. 713. And lastly, the Court will grant in part and deny in part Defendant Borgesi's Second Supplemental Motion in Limine to Exclude Other Crimes Evidence Pursuant to Federal Rules of Evidence 404(b) and 403. ECF No. 828.

II.BACKGROUND

Defendant Ligambi is one of fourteen Defendants charged in a fifty-two count Third 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. The case is specially listed for trial on October 9, 2012.*fn1

Pursuant to the Court's Third Scheduling Order, the Court set a hearing date of August 9, 2012, to consider all motions regarding or based upon Jencks Act material, motions in limine, motions to suppress, and to conduct any necessary Starks or Daubert hearing. ECF No. 521. During the August 9, 2012, hearing the Court heard oral argument on the submitted motions in limine, but continued the hearing to August 17, 2012, to allow both parties to submit further briefing and responses to the pending motions. See ECF No. 765. After hearing further oral argument on the pending motions on August 17, 2012, the motions are now ripe for disposition.

III.MOTION TO STRIKE SURPLUSAGE FROM THE INDICTMENT

Defendant Ligambi filed a Motion to Strike Surplusage from the Indictment and Bar All Reference to the History and Structure of La Cosa Nostra at Trial. Def.'s Mot. 1, ECF No. 561. Defendant argues that "[b]y aligning the present defendants, who have not been charged with a single violent offense, with notorious past mafia leaders, the United States intends to instill fear in the jury and lead them to the unreasonable and impermissible conclusion that because the defendants are alleged to be members of the mafia, they are guilty of crimes far more heinous than any of those charged in this indictment." Id. at 2. The Government responds that all of the allegations contained in Count One of the Second Superseding Indictment*fn2 regarding the structure and history of the Philadelphia LCN Family, including the names of past members and alleged bosses, identify and describe the essential elements of the charged offense of RICO conspiracy.*fn3 Gov't's Resp. 13, ECF No. 577.

Defendant Ligambi moves pursuant to Rule 7(d) for an order that would strike surplusage from the indictment.*fn4 The paragraphs he regards as surplusage are portions of paragraphs two through five, and seven which are captioned "Structure of the Philadelphia LCN Family" and "Manner and Means of the Enterprise" and which are largely devoted to an overview of the Philadelphia LCN Family, the "enterprise" alleged to be the object of the RICO Counts. Def.'s Supp. Mot. 3-14, ECF No. 804. Defendant Ligambi also moves to strike paragraph twenty-six that falls under the caption of "Loansharking Activities," which avers that "[i]n connection with making and collecting extensions of credit and usurious loans, defendants LIGAMBI, STAINO, MASSIMINO, BORGESI, CANALICHIO, BARRETTA, and BATTAGLINI cultivated and exploited the violent reputation of the Enterprise . . . ." Id. at 26. Defendant Staino, Jr., moves to strike the portion of paragraph twenty-six, in which the indictment alleged that Defendant Staino, Jr., referred to co-Defendant Ligambi when he stated to Victim C: "he's fuckin' flipping, you understand." Def. Staino, Jr.'s, Mot. ¶ 21, ECF No. 742.

A court may strike surplusage from an indictment upon a defendant's motion pursuant to Federal Rule of Criminal Procedure 7(d). "This rule introduces a means of protecting the defendant against immaterial or irrelevant allegations in an indictment or information, which may, however, be prejudicial." Fed. R. Crim. P. 7(d) advisory committee's note. A court may strike surplusage from the indictment or information when it is both irrelevant (or immaterial) and prejudicial. See United States v. Hedgepeth, 434 F.3d 609, 612 (3d Cir. 2006). "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." Id. at 612.

"In RICO cases, courts have refused to strike allegations of organized crime connections that 'serve to identify the "enterprise" and the means by which its members and associates conduct various criminal activities.'" United States v. Scarpa, 913 F.3d 993, 1013 (2d Cir. 1990) (citing United States v. Napolitano, 552 F. Supp. 465, 480 (S.D.N.Y. 1982)). The term "enterprise" under RICO includes "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4) (2006). An "association-in-fact" enterprise (that is, an enterprise composed of a group of individuals rather than a legal entity such as a corporation) "is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." United States v. Turkette, 452 U.S. 576, 583 (1981); see also United States v. Irizarry, 341 F.3d 273, 285-86 (3d Cir. 2003). A RICO enterprise "is an entity separate and apart from the pattern of racketeering activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government." Turkette, 452 U.S. at 583; see also Boyle v. United States, 556 U.S. 938, 946 (2009) ("[I]t is apparent that an association-in-fact enterprise must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise's purpose.").

While Defendant Ligambi identifies several parts of the Third Superseding Indictment that he characterizes as surplusage, he has not satisfied the exacting standard required for a successful 7(d) motion. First, he asserts that the previous indictment did not mention the "North Jersey Crew of the Philadelphia LCN Family." While this may be true, the allegations are neither irrelevant nor prejudicial because they are probative of the association of Defendants Licata and Fazzini with the RICO enterprise. In addition, the Government argues that the inclusion of these allegations demonstrates the organizational structure and part of the manner and means of the RICO enterprise, as Defendant Ligambi initiated Defendant Fazzini into the enterprise in the presence of Defendant Licata and Defendants Licata and Fazzini admitted to being part of the New Jersey Crew of the Philadelphia LCN Family. Gov't's Resp. 7. Accordingly, these passages are neither irrelevant nor prejudicial.

Second, Defendant asserts that the Third Superseding Indictment is more expansive in its charging of the role of the boss and the fact that Defendant is now charged as "the acting boss." Def.'s Mot. 2-3. These allegations are relevant to proving the existence of the RICO enterprise, its structure, and Defendant Ligambi's place at its head. As such, Defendant has no basis to strike this indictment language.

Third, Defendant states that the Third Superseding Indictment lists bosses and other high-ranking Philadelphia LCN Family members who were convicted of crimes of violence, including murders, while the current indictment "does not contain a single act of violence." Id. at 3. First, it is axiomatic that allegations of extortionate extensions of credit and conspiracy to extort fall within the definition of "crimes of violence" when they operate through the alleged threat of violence and exploitation of the Philadelphia LCN's reputation for violence. See 18 U.S.C. § 16. Second, contrary Defendant's allegation that this language only imputes the past Philadelphia LCN bosses' reputations and criminal records to the present Defendants, this information is probative of the reputation of the enterprise and the fact that the present Defendants allegedly relied on that reputation to achieve the objectives of the enterprise. See Third Superseding Indictment ¶ 6 (charging that one of the principal purposes of the Philadelphia LCN Family, or the enterprise, was "to protect the Enterprise's territory and promote its interests through violence, actual and implied threats of violence, and the cultivation and exploitation of the Enterprise's reputation for violence").

Thus, evidence of past bosses and leaders is relevant as probative of the necessary element of enterprise, that is, it tends to show the continuity of existence and purposes of the enterprise and demonstrates that its manner and means is designed to continue over time. Accordingly, as this evidence is relevant, the Court will not strike it as surplusage.

Fourth, Defendant asserts that the making ceremony is described more extensively and that several actions, such as disloyalty to the "boss," are now alleged to be punishable by bodily harm including death. Def.'s Mot. 9. As with the other allegations, these allegations are relevant to proving the existence, structure, and purpose of the RICO enterprise charged in the Third Superseding Indictment. Thus, these allegations will not be stricken from the Third Superseding Indictment.

Fifth, Defendant Ligambi objects to paragraph twenty-six because it alleges that "[i]n connection with making and collecting extensions of credit and usurious loans, defendants LIGAMBI, STAINO, MASSIMINO, BORGESI, CANALICHIO, BARRETTA, and BATTAGLINI cultivated and exploited the violent reputation of the Enterprise . . . ." The pattern of racketeering activity alleged includes acts of extortion and extortionate credit transactions. See Third Superseding Indictment ¶ 17. Thus, allegations of implied use of threats through the exploitation of the allegedly violent reputation of the enterprise are probative of these acts of racketeering activity and will not be stricken from the Third Superseding Indictment.*fn5

Last, Defendant Staino, Jr., seeks to strike the alleged reference to co-Defendant Ligambi because Victim C "cannot testify from personal knowledge that defendant Staino was referring to co-defendant Joe Ligambi." Def. Staino, Jr.'s, Mot. ¶ 21. This is one of several examples the Government alleges in the indictment to show how Defendants "cultivated and exploited the violent reputation of the Enterprise to discourage resistance to their extortionate demands and to threaten borrowers that if they did not promptly repay the loans, with interest, they would suffer physical and economic harm." Third Superseding Indictment ¶ 26. Defendant Staino, Jr., does not argue that this evidence is irrelevant or prejudicial, but makes a foundational objection as to a witness's personal knowledge of these events.*fn6 As this example is relevant as probative evidence of the acts of racketeering alleged in the enterprise's pattern of racketeering, the Court will not strike the portion of paragraph twenty-six that Defendant Staino, Jr., indicates in his motion.

In sum, neither Defendant Ligambi nor Defendant Staino, Jr., has met his burden under Rule 7(d) to successfully strike the identified passages and thus ...


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