# United States v. Gatto

> District Court, D. New Jersey · September 4, 1990 · 746 F. Supp. 432

URL: https://www.frixlaw.com/law-library/cases/1757002

## Case

- **Full name:** UNITED STATES of America, v. Louis GATTO, Sr. A/K/A “Streaky;” Alan Grecco A/K/A “Alan Wolshonak;” Stefano Mazzola; Louis Gatto, Jr.; Joseph Gatto; William Odierno; Peter Mylenki; And Frank Camiscioli, Jr., Defendants
- **Court:** District Court, D. New Jersey
- **Decided:** September 4, 1990
- **Citations:** 746 F. Supp. 432; 1990 U.S. Dist. LEXIS 11676; 1990 WL 127022
- **Precedential status:** Published
- **Opinion:** Opinion by Brotman
- **Judges:** Brotman
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by United States v. Gatto, 924 F.2d 491 (1991).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1757002

## Opinion text

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TABLE OF CONTENTS
I. FACTS AND PROCEDURE.
A. Defendant Frank Camiscioli, Jr.
B. Defendant Peter Mylenki.
C. Defendant William Odierno.
D. Defendant Alan Grecco.
E. Defendant Joseph Gatto.
F. Defendant Louis Gatto Sr.
G. Defendant Louis Gatto Jr.
H. Defendant Stefano Mazzola.
II. DISCUSSION.
A. Motions for Severance .
1. Prejudicial Joinder.
2. Need for Exculpatory Testimony.
B. Motions Attacking the Indictment.
1. Motion to Strike Violent Acts from Indictment.
2. RICO’s “Pattern of Racketeering” Requirement is Unconstitutionally Vague.
3. Motion to Strike Prejudicial Surplusage.
a. Reference to the “Gatto Group” and “Genovese Crime Family”
b. Aliases.
c. “Catch-all” Phrases.
d. References to Acts of Violence.
4. Motion to Dismiss Counts Charging Multiple Offenses.
5. Motion to Dismiss Count One for Failure to Specify Predicate Acts
6. Motion to Dismiss Count Two because Predicate Acts are Not Related to Objectives of the Enterprise. 05
7. Motion to Dismiss Indictment for Violating the Statute of Limitations 05
C. Motions In Limine to Bar Introduction of Certain Evidence. 05
1. Admissibility of Coconspirators’ Statements. 05
2. Motion to Suppress Statements of Mylenki and Camiscioli. 05
3. Motion to Suppress Post-Hypnotic Statements of Frank Galimi. 05
(a) Right to Confrontation. Oí
(b) Due Process Rights . —3
4. Motion to Suppress Grecco’s Statements and Physical Evidence. -»3
5. Motion for a Hearing on Admissibility of Mazzola’s Convictions. —3
D. Motions for Evidence from the Government. —3
1. Motion for
Brady
and
Giglio
Materials. —3
2. Early Disclosure of Jencks Materials. —3
3. Motion for Coconspirators’ Statements . -«3
4. Motion for a Witness List. —5
5. Motion for a Bill of Particulars. *~3
6. Motion for the Names of Informants . —3
7. Motion for Rough Notes . —3
8. Motion to Serve Subpoenas. —3
9. Motion for Disclosure of Grand Jury Transcripts. "~3
10. Motions for Disclosure of 404(b) Material of Prior Bad Acts. OO
E. Motions to Dismiss for Improper Governmental Conduct. CO
F. Motion to Transfer. OO
III. CONCLUSION. OO
OPINION
BROTMAN, District Judge.
Currently before the court are the pretrial motions of all defendants. The court heard oral argument on defendants’ motions on June 8, 1990 and held two eviden-tiary hearings on defendant Grecco’s motion to suppress statements of Frank Gali-mi on June 13,1990 and July 30, 1990. The
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motions fall within four general categories; motions attacking the sufficiency of the indictment; motions
in limine
to bar introduction of certain evidence; motions for certain evidence from the government; and motions for relief based on the government’s improper conduct. Additionally, each defendant has moved for severance of his trial from his codefendants’ and to transfer the trial to the Newark vicinage. Many defendants raise the same issues in their briefs; this court will address them
seriatim.
I. FACTS AND PROCEDURE
A.Defendant Frank Camiscioli, Jr.
Camiscioli is named in Count 1 (RICO conspiracy under 18 U.S.C. § 1962 (d)), Count 3 (collection of unlawful debt), and Count 5 (numbers gambling business) of the indictment. The government contends that Camiscioli is incorporated by reference in the remaining counts of the indictment although he is not named nor specifically alleged to have a particular role in the conduct charged in Count 2 (substantive RICO count under 18 U.S.C. § 1962 (c) and aiding and abetting under 18 U.S.C. § 2 ), Count 4 (sports gambling business), Count 6 (use of interstate telephone in aid of racketeering), Count 7 (interstate travel in aid of racketeering), Count 8 (interstate transportation of wagering records), and Count 9 (extortionate extensions of credit). Camiscioli moves for severance of his trial because (1) he will be unduly prejudiced by harmful “spill over” evidence against other defendants such that the jury will be unable to compartmentalize the evidence effectively as it relates to different defendants; (2) Camiscioli’s counsel, in rigorously defending his client, may be required to make prejudicial comments regarding other defendants’ exercise of their right to silence, necessitating a separate trial from these codefendants; and (3) Camiscioli’s alleged coconspirators can exculpate him in the five counts in which he is not named; therefore, he is entitled to a separate trial so he may compel his coconspirators to testify.
B.
Defendant Peter Mylenki
Mylenki also moves for severance raising substantially similar arguments. Mylenki is named in Count 1 (RICO conspiracy under 18 U.S.C. § 1962 (d)), Count 4 (sports gambling), Count 6 (use of interstate telephone facilities in aid of racketeering activities), Count 7 (interstate travel in aid of racketeering), and Count 8 (interstate transportation of wagering records) of the indictment. He is not, however, alleged to have participated in any of the eight racketeering acts that involve violence. Mylenki argues that his minuscule participation in the enterprise presents a stark contrast in the degree and kind of evidence against Mylenki as compared to his codefendants; therefore, joinder of his trial with these codefendants is unduly prejudicial.
C.
Defendant William Odierno
Odierno is named in Count 1 (RICO conspiracy under 18 U.S.C. § 1962 (d)), Count 4 (sports gambling), Count 6 (use of interstate telephone facilities in aid of racketeering activities), Count 7 (interstate travel in aid of racketeering), and Count 8 (interstate transportation of wagering records) of the indictment. Odierno is not named in any of the acts of violence. He moves to sever his trial from his codefend-ants based on the gross disparity in the quantity and venality of the evidence; he contends that the jury can not reasonably compartmentalize the evidence that relates to separate defendants and he is, therefore, prejudiced by joinder of the trial with his codefendants.
D.
Defendant Alan Grecco
Defendant Grecco is named in Count 1 (RICO conspiracy under 18 U.S.C. § 1962 (d)), Count 2 (substantive RICO count under 18 U.S.C. § 1962 (c) and aiding and abetting under 18 U.S.C. § 2 ), Count 3 (collection of unlawful debts), Count 4 (sports gambling), Count 5 (numbers gambling), Count 6 (use of interstate telephone facilities in aid of racketeering activities), Count 7 (interstate travel in aid of racketeering), and Count 8 (interstate transportation of wagering records) of the indict
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ment. In Count 2, the indictment charges Grecco with participation in seven “racketeering acts,” including:
1. the 1976 or 1977 conspiracy to take over the Belli gambling business through the murder of Arthur Belli and the threatening of Robert Belli (“Racketeering Act 1”);
2. the 1977 conspiracy to take over the Stumpo-Barbarulla gambling business through threats to Anthony Stumpo and James Barbarulla (“Racketeering Act 2");
3. the April 1979 conspiracy to murder Vincent Mistretta (“Racketeering Act 3”);
4. the extortionate collection of credit from Howard Clarke (“Racketeering Act 4”);
5. the 1983 or 1984 conspiracy to collect a debt from Anthony Stumpo (“Racketeering Act 5”);
6. the unlawful operation of a sports gambling business from 1973 “up to and including the date of filing of the indictment” (“Racketeering Act 8”);
7. the unlawful operation of a numbers gambling business from 1974 “up to and including the date of filing of the indictment” (“Racketeering Act 9”).
Grecco argues that this court should strike from the indictment any reference to homicides and other violent acts because the charges have been brought in bad faith by the government, are stale, and severely prejudice defendant’s ability to obtain a fair trial. He contends that the government, in bad faith, has converted a gambling case into a murder case by including inflammatory allegations of violent acts. Alternatively, Grecco
argues
that the indictment must be dismissed in its entirety because he has been severely prejudiced by the undue delay of the government in bringing the indictment. Such prejudice includes the absence of potential alibi witnesses who by reason of death or unavailability are unable to testify for defendants concerning the violent acts. Grecco contends that the government deliberately delayed the indictment to gain a tactical advantage; therefore, the court should dismiss the entire indictment. He also contends that the probative value of the evidence of violent acts does not outweigh its unduly prejudicial effect on defendants. Grecco requests that the court determine
in limine
whether evidence relating to the violent acts in the indictment is admissible under Rule 403 of the Federal Rules of Evidence.
Grecco also contends that the government has failed to turn over all exculpatory evidence within the purview of
Brady v. Maryland,
373 U.S. 83, 87 , 83 S.Ct. 1194, 1196 , 10 L.Ed.2d 215 (1963) (suppression of evidence favorable to accused violates due process regardless of government’s good faith). Defendant contends that the government has not turned over any material relating to the credibility of significant government witnesses as required by
Giglio v. United States,
405 U.S. 150, 154 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104 (1972) (nondisclosure of evidence affecting credibility of government witness falls within
Brady
rule). Grecco disputes the government’s distinction between
Brady
material and
Giglio
material and argues that the government must supply these materials in useable form, such as trial transcripts. Defendant also argues that, to the extent materials fall within the definition of both
Giglio
and the Jencks Act, 18 U.S.C. § 3500 (statements of government witnesses not subject to pretrial disclosure), constitutional due process requirements govern the timing of the turnover of the materials rather than the statutory limits in the Jencks Act.
Grecco requests a bill of particulars under Rule 7(f) of the Federal Rules of Criminal Procedure identifying all his alleged coconspirators. He also requests dates, times, and locations of the alleged offenses charged in the indictment as well as every offense that the government intends to prove at trial.
1
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Defendant requests disclosure of the names and last known addresses of government informants. Grecco contends that the balance between the government’s need for confidentiality and the defendants’ need for the information tips in favor of the accused.
Grecco seeks a pretrial hearing on the admissibility of evidence of other crimes, wrongs, or acts that the government intends to introduce at trial under Rule 404(b) of the Federal Rules of Evidence. Grecco argues that a pretrial determination of admissibility is necessary so that he may argue against this evidence in his opening statement to the jury. He also argues that the evidence the government seeks to introduce will require substantial investigation by defendants; therefore, defendants must have immediate disclosure if they are to receive a fair trial. Additionally, he argues that a pretrial determination will avoid undue delay during the trial.
Defendant requests an order for the government to preserve rough notes and handwritten drafts prepared by any government agent in connection with this investigation.
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Grecco argues that the definition of a “pattern of racketeering activity” is unconstitutionally vague; therefore, those counts of the indictment charging him with RICO violations must be dismissed. He contends that courts’ widely divergent definitions of “pattern” do not put defendants on notice of what conduct is proscribed by the statute.
Grecco requests an order striking sur-plusage from the indictment. Essentially, defendant requests that the court strike any reference to the “Gatto group” or “group;” to any acts of violence; and to any “racketeering act” as unduly prejudicial.
He also argues that prosecutorial abuses in this case require disclosure of all grand jury transcripts and attendance records of the grand jury. According to Grecco, disclosure is mandated here because the government delayed the indictment in bad faith, the government failed to turn over exculpatory evidence, and defendant suspects the government did not present exculpatory evidence to the grand jury.
Grecco contends that the government failed to comply with Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure by its failure to disclose the substance of any oral statements made by the defendant to a government agent or the substance of co-conspirators’ statements that the government will seek to introduce under Rule 801(d)(2)(E) of the Federal Rules of Evidence. Defendant’s brief also refers to a “significant amount of documentary evidence that defendant has reason to believe is in the government’s possession” that the government allegedly has not disclosed to defendant; however, he does not specify what materials are held by the government.
The defendant argues that, although he is not entitled as a matter of right to a list of witnesses, the circumstances in this case warrant pretrial disclosure of the names of anticipated witnesses. Specifically, Grecco contends that the acts alleged are so old that he will not be able to prepare his defense properly without the names of potential witnesses.
In his motion to dismiss the indictment, Grecco again cites to preindictment delay as egregious governmental conduct that warrants dismissal. Defendant notes that the government’s failure to provide discovery adds to outrageous nature of the government’s misconduct.
Grecco moves to suppress the post-indictment statements of codefendants Mylenki and Camiscioli. He argues that the statements are not admissible under
Bruton v. United States,
391 U.S. 123, 137 , 88 S.Ct. 1620, 1628 , 20 L.Ed.2d 476 (1968) (admission of codefendant’s confession in joint trial violates defendant’s right to cross-examine) because such evidence violates his constitutional right to confrontation if the declarant does not testify at the trial.
According to the defendant, the indictment charges multiple offenses within a single count, thereby violating Rule 8 of the Federal Rules of Criminal Procedure. Grecco asserts that, in the first count of the indictment and in subsequent counts that incorporate Count 1 by reference, the government charges two separate conspiracies — one for sports gambling and one for numbers gambling. Noting that a jury could find a defendant guilty of sports gambling but not of numbers gambling yet its verdict would not reflect that outcome, defendant argues that counts charging multiple offenses in a single count must be dismissed.
Grecco argues that his trial must be severed from that of his codefendants because certain codefendants could exculpate him if they testified at a separate trial. Specifically, Grecco asserts that Joseph Gatto could exculpate him from the government’s charge that he threatened Stumpo in Gat-to’s presence and that he attended a meeting to plan the murder of Arthur Belli. Contending that a separate trial would serve the interests of judicial economy, Grecco also notes that Gatto is not easily impeachable because he has no prior record. Additionally, he argues that his trial must be severed because the disparity in the quantum of evidence against him as compared to his codefendants will result in prejudice if their trials are joined. He
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maintains that the jury will be unable to compartmentalize the evidence against each defendant and to avoid using evidence relevant to another against him.
The defendant also seeks an
in limine
ruling on the admissibility of alleged cocon-spirators’ statements under Rule 801(d)(2)(E) of the Federal Rules of Evidence. He contends that the government can not meet its burden to show existence of a conspiracy or that statements occurred during the course of the conspiracy or were in furtherance of the conspiracy.
Grecco contends that Count 1 of the indictment fails to specify the predicate acts to establish a pattern of racketeering activity because it alleges the pattern was “of the type” alleged in Count 2 of the indictment. He argues that this language fails to give notice of the specific predicate acts he is alleged to have committed.
Defendant also argues that the predicate offenses alleged in the indictment are not related to each other or to the alleged objectives of the enterprise as required by 18 U.S.C. § 1962 (c). Under
Sedima, S.P. R.L. v. Imrex Co., Inc.,
473 U.S. 479 , 496 n. 14, 105 S.Ct. 3275 , 3285 n. 14, 87 L.Ed.2d 346 (1985), sporadic activity does not establish a pattern under 18 U.S.C. § 1962 (c); rather, the predicate acts must be continuous and relate to the objectives of the enterprise.
Id.
Grecco argues that the predicate acts are unconnected because they occurred sporadically over a long period of time; thus, this court must dismiss Count 2 for failure to state an essential element of the crime.
Defendant seeks an order permitting him to serve subpoenas upon third parties who possess documents and other materials that are, according to defendant, critical to his defense.
Grecco argues that the statute of limitations for most federal crimes, 18 U.S.C. § 3282 , bars the RICO offenses charged. He argues that those cases that hold a RICO charge is timely charged if at least one predicate racketeering occurs within five years of the indictment do not apply here because the predicate acts are not continuous and are not related.
Grecco moves to suppress the statement of Frank Galimi, a witness to the Mistretta murder, that was made while Galimi was under hypnosis. He argues that the statement is inadmissible because it is inherently unreliable and was given under suggestive circumstances. Defendant fails to specify what conditions existed at the time of the statement. Defendant notes that the statement is inconsistent with Galimi’s prior statements and with police reports of the incident.
Although the government has not advised defendant that it possesses statements or evidence from him, however, defendant requests a suppression hearing in the event that the government comes forward with any such evidence.
Additionally, Grecco moves to transfer venue to the Newark vicinage because the attorneys, parties, are evidence are located in the Newark area. He argues that the length of this complex trial reduces his attorney’s time for preparation and increases the cost of his defense.
Finally, Grecco moves to join in all motions of his codefendants.
E.
Defendant Joseph Gatto
Defendant Joseph Gatto is named in Count 1 (RICO conspiracy under 18 U.S.C. § 1962 (d)), Count 2 (substantive RICO count under 18 U.S.C. § 1962 (c) and aiding and abetting under 18 U.S.C. § 2 ), Count 3 (collection of unlawful debts), Count 4 (sports gambling), Count 6 (use of interstate telephone facilities in aid of racketeering activities), Count 7 (interstate travel in aid of racketeering), Count 8 (interstate transportation of wagering records), and Count 9 (financing extortionate extensions of credit) of the indictment. In Count 2, the indictment charges Joseph Gatto with participation in five “racketeering acts,” including:
1. the 1976 or 1977 conspiracy to take over the Belli gambling business through the murder of Arthur Belli and the threatening of Robert Belli (“Racketeering Act 1”);
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2. the 1977 conspiracy to take over the Stumpo-Barbarulla gambling business through threats to Anthony Stumpo and James Barbarulla (“Racketeering Act 2”);
3.
the 1983 or 1984 conspiracy to collect a debt from Anthony Stumpo (“Racketeering Act 5”);
4. the unlawful operation of a sports gambling business from 1973 “up to and including the date of filing of the indictment” (“Racketeering Act 8”);
5. financing extortionate extensions of credit (“Racketeering Act 10”).
Joseph Gatto joins in all motions of code-fendants Grecco and Mazzola.
F.
Defendant Louis Gatto Sr.
Defendant Louis Gatto Sr. is named in Count 1 (RICO conspiracy under 18 U.S.C. § 1962 (d)), Count 2 (substantive RICO count under 18 U.S.C. § 1962 (c) and aiding and abetting under 18 U.S.C. § 2 ), Count 4 (sports gambling), Count 5 (numbers gambling), Count 6 (use of interstate telephone facilities in aid of racketeering activities), Count 7 (interstate travel in aid of racketeering), and Count 8 (interstate transportation of wagering records) of the indictment. In Count 2, the indictment charges Louis Gatto Sr. with participation in two “racketeering acts,” including:
1. the 1976 or 1977 conspiracy to take over the Belli gambling business through the murder of Arthur Belli and the threatening of Robert Belli (“Racketeering Act 1”);
2. the April 1979 conspiracy to murder Vincent Mistretta (“Racketeering Act 3”).
Louis Gatto Sr. join in all motions brought by all codefendants.
G.
Defendant Louis Gatto Jr.
Defendant Louis Gatto Jr. is named in Count 1 (RICO conspiracy under 18 U.S.C. § 1962 (d)), Count 2 (substantive RICO count under 18 U.S.C. § 1962 (c) and aiding and abetting under 18 U.S.C. § 2 ), Count 4 (sports gambling), Count 6 (use of interstate telephone facilities in aid of racketeering activities), Count 7 (interstate travel in aid of racketeering), and Count 8 (interstate transportation of wagering records) of the indictment. In Count 2, the indictment charges Louis Gatto Jr. with participation in two “racketeering acts,” including:
1. the 1977 conspiracy to take over the Stumpo-Barbarulla gambling business through threats to Anthony Stumpo and James Barbarulla (“Racketeering Act 2”);
2. the unlawful operation of a sports gambling business from 1973 “up to and including the date of filing of the indictment” (“Racketeering Act 8”).
Louis Gatto Jr. joins in all motions of code-fendant Grecco and point two of codefend-ant Mazzola’s brief.
H.
Defendant Stefano Mazzola
Defendant Mazzola is named in Count 1 (RICO conspiracy under 18 U.S.C. § 1962 (d)), Count 2 (substantive RICO count under 18 U.S.C. § 1962 (c) and aiding and abetting under 18 U.S.C. § 2 ), and Count 4 (sports gambling) of the indictment. In Count 2, the indictment charges Mazzola with participation in five “racketeering acts,” including:
I. the 1976 or 1977 conspiracy to take over the Belli gambling business through the murder of Arthur Belli and the threatening of Robert Belli (“Racketeering Act 1”);
2. the 1983 or 1984 conspiracy to collect a debt from Anthony Stumpo (“Racketeering Act 5”);
3. the 1977 conspiracy to collect a debt from Robert Lipani (“Racketeering Act 6”);
4. the 1983 conspiracy to collect a debt from Robert Lipani (“Racketeering Act 7”);
5. the unlawful operation of a sports gambling business from 1973 “up to and including the date of filing of the indictment” (“Racketeering Act 8”).
Mazzola moves for essentially the same relief as Grecco. In his omnibus motion, Mazzola seeks:
(1) a severance based on the same prejudice arguments as Grecco’s motion;
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(2) a pretrial hearing to determine admissibility of other crimes and wrongdoings under Rule 404(b) of the Federal Rules of Evidence;
(3) a bill of particulars for substantially the same information as Grecco;
(4) that this court strike prejudicial sur-plusage from the indictment;
(5) an order for the government to disclose
Brady
and
Giglio
materials;
(6) a pretrial hearing on the admissibility of coconspirators’ statements, arguing that the government must show, by independent evidence, that a conspiracy existed;
(7) early disclosure of Jencks Act material;
(8) an order that the government retain all rough notes and reports, including the rough notes of the government attorney from interviews of witnesses which notes, according to Mazzola, may not be protected by the attorney work product privilege;
(9) an
in limine
hearing to determine whether his prior conviction is admissible for impeachment purposes under Rule 609(a)(1) and (2) of the Federal Rules of Evidence. He argues that a pretrial determination is required so he may make a tactical decision whether he should testify at trial;
(10) an order that the government to disclose the identity of confidential informants because, considering the requirements of fundamental fairness, the informer’s privilege should not apply;
(11) an
in camera
review by the court of the grand jury transcripts to determine whether the transcripts should be disclosed to defendants.
Mazzola’s motion to dismiss Counts 1, 2, and 4 of the indictment argues that these counts are barred by the statute of limitations. Mazzola notes that four of the five racketeering acts with which he is charged occurred more than five years before the indictment. He also contends that, by virtue of his imprisonment, he affirmatively withdrew from and abandoned any conspiracy; therefore, he is not liable for the acts of his alleged coconspirators. To satisfy the statute of limitations for the substantive RICO offense, here Count 2, the government must show that the defendant committed at least one predicate racketeering act within the five year limitations period.
II. DISCUSSION
A.
Motions for Severance
1. Prejudicial Joinder
Under Rule 14 of the Federal Rules of Criminal Procedure, this court may order separate trials, or whatever other relief justice requires, if it appears that a defendant is prejudiced by joinder of offenses. Fed.R.Crim.P. 14. A motion for severance is committed to the sound discretion of the district court.
United States v. Boyd,
595 F.2d 120, 125 (3d Cir.1978). Denial of a motion for severance is inappropriate, however, if there is a great disparity in the amount of evidence between the moving defendant and his or her codefendants.
United States v. Peters,
791 F.2d 1270, 1302 (7th Cir.) (disparity in quantum of documentary evidence did not cause actual prejudice),
cert. denied,
479 U.S. 847 , 107 S.Ct. 168 , 93 L.Ed.2d 106 (1986). In such instances, the relevant inquiry is whether a jury has the capacity to follow the trial court’s limiting instructions requiring separate consideration for each defendant and the evidence admitted against that defendant.
Id.
(limiting instructions during course of trial and in final charge sufficient to prevent transference of guilt);
United States v. DiPasquale,
740 F.2d 1282, 1294 (3d Cir.1984) (court’s repeated instructions to jury and government’s well-ordered presentation of case averted serious prejudice to defendant who played comparatively small part in conspiracy),
cert. denied,
469 U.S. 1228 , 105 S.Ct. 1226 , 84 L.Ed.2d 364 (1985);
United States v. Kendall,
665 F.2d 126, 137 (7th Cir.1981) (interim instructions and “positive and clear instructions at the close of the case” not likely to result in jury confusion),
cert. denied,
455 U.S. 1021 , 102 S.Ct. 1719 , 72 L.Ed.2d 140 (1982). “[T]he primary consideration is whether the jury can compartmentalize the evidence
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as it relates to separate defendants.... ”
United States v. De Larosa,
450 F.2d 1057, 1065 (3d Cir.1971) (unfavorable impression created by codefendant’s identification with unpopular social and political group and prior imprisonment did not require severance), ce
rt. denied,
405 U.S. 927 , 92 S.Ct. 978 , 30 L.Ed.2d 800 (1972).
Alleged participants in a single conspiracy, however, “should ordinarily be tried together for purposes of judicial efficiency and consistency, even if the evidence against one is more damaging than that against another.”
United States v. Ward,
793 F.2d 551, 556 (3d Cir.1986).
See also United States v. De Peri,
778 F.2d 963 (3d Cir.1985) (defendant not entitled to severance merely because evidence against code-fendant more damaging than against him or her),
cert. denied sub nom., Pede v. United States,
475 U.S. 1110 , 106 S.Ct. 1518 , 89 L.Ed.2d 916 (1986);
United States v. Sebetich,
776 F.2d 412, 427 (3d Cir.1985) (neither disparity in evidence nor evidence more damaging to one defendant than another entitles less culpable defendant to severance),
cert. denied,
484 U.S. 1017 , 108 S.Ct. 725 , 98 L.Ed.2d 673 (1988). To war rant severance among alleged coconspira-tors, “[s]ome exacerbating circumstances, such as the [prospective] jury’s inability to ‘compartmentalize’ the evidence, are required.”
United States v. Adams,
759 F.2d 1099, 1112-13 (3d Cir.) (citing
United States v. Dansker,
537 F.2d 40, 62 (3d Cir.1976) (with frequent and clear instructions, jury can compartmentalize complex evidence of codefendants’ prior diversion of corporate funds),
cert. denied,
429 U.S. 1038 , 97 S.Ct. 732 , 50 L.Ed.2d 748 (1977),
cert. denied,
474 U.S. 971 , 106 S.Ct. 336 , 88 L.Ed.2d 321 (1985)). A defendant must demonstrate clear and substantial prejudice resulting in a manifestly unfair trial.
Ward,
793 F.2d at 556 .
Among the factors the court must consider in determining whether the prejudice of a joint trial rises to the level of a “miscarriage of justice” are the following: the number of defendants and the number of counts; the complexity of the indictment; the estimated length of the trial; disparities in the amount or type of proof offered against the defendants; disparities in the degrees of involvement by defendants in the overall scheme; possible conflict between the various defense theories or trial strategies; and, especially, prejudice from evidence admitted only against co-defendants but which is inadmissible or excluded as to a particular defendant.
United States v. Gallo,
668 F.Supp. 736, 749 (E.D.N.Y.1987),
aff'd,
863 F.2d 185 (2d Cir.1988).
See also United States v. Sandini,
888 F.2d 300, 306 (3d Cir.1989) (severance not required where defendant offered conclusory allegations that his defense was “truly antagonistic” and “mutually exclusive” to codefendant’s),
cert. denied,
— U.S.-, 110 S.Ct. 1831 , 108 L.Ed.2d 959 (1990);
United States v. Mardian,
546 F.2d 973, 977-78 (D.C.Cir.1976) (disparity in amount of evidence against defendant charged with conspiracy and not with substantive counts makes fairly strong case for severance where defendant made 5 of 45 overt acts in furtherance of conspiracy). “None of the factors are themselves dis-positive; instead, the court must decide whether the jury would be ‘reasonably able’ to consider the evidence as to each defendant separately, independent of the evidence against his or her coconspirators.”
Gallo,
668 F.Supp. at 749 .
Courts have frequently severed trials based on these factors. In
United States v. Gallo,
668 F.Supp. 736 (E.D.N.Y.1987),
aff'd,
863 F.2d 185 (2d Cir.1988), the United States District Court for the Eastern District of New York held that compartmentalization of evidence would be very difficult or unlikely as to several of the fourteen defendants; thus, severance of the trial into seven discrete trials was appropriate.
Id.
at 749, 758-60. The twenty-two count indictment originally named sixteen defendants; Count 1 named thirteen of the sixteen defendants for conspiring to participate in the affairs of a racketeering enterprise and the remaining counts named fourteen defendants with various substantive offense relating to the affairs of the alleged enterprise.
Id.
at 738. The non-RICO counts all concerned crimes that
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were alleged as predicate acts in the RICO conspiracy count.
Id.
The court noted that, as the number of counts and defendants in an indictment increases, the resultant complex trial record makes it more difficult for a jury to keep straight the specific evidence and charges against each defendant.
Id.
at 749. Such difficulties are compounded for those defendants against whom only a small portion of the evidence is relevant.
Id.
at 750. The court noted that “ ‘[inevitable prejudice’ to the peripheral defendants is caused by the ‘slow but inexorable accumulation of evidence’ against the major players.”
Id.
(quoting
United States v. Kelly,
349 F.2d 720, 759 (2d Cir.1965),
cert. denied,
384 U.S. 947 , 86 S.Ct. 1467 , 16 L.Ed.2d 544 (1966)). Such prejudice would be “especially acute for those defendants whose alleged activities did not include the sort of violent or heinous offenses with which some of their brethren are charged.”
Id.
The court noted, however, that as alleged members of the crime family, these defendants were likely to be aware of the nature of the ongoing activity and the jury could infer that they may have acquiesced in the more violent aspects of the racketeering enterprise.
Id.
at 751 .
The court added that the various defenses offered would almost inevitably be antagonistic to one another given the sheer number of defendants, weighing in favor of severance.
Id.
According to the court, the morass of alleged conspiracies within conspiracies, defendants joining and leaving certain conspiracies, and conspiracies to conceal other conspiracies would require that the jury heed extraordinarily intricate limiting instructions which, given the numerous defendants and charges, would be virtually impossible.
Id.
at 752 . While the court recognized that the jury can and will follow limiting instructions, it nonetheless found the trial judge must first be convinced that the jury “has a reasonable chance of understanding and acting upon instructions from the court.”
Id.
Given that the jury would be expected to retain precise distinctions for weeks and months until they retired to deliberate, the court found that such limiting instructions would be inadequate.
Id.
at 753 .
Finally, the court considered the inherent power of the court to control the administration of complex cases. The court noted that these “monster” trials work severe hardships on the jurors selected because they are removed from their normal lives for inordinate stretches of time.
Id.
at 754 .
See also United States v. Vastola,
670 F.Supp. 1244, 1263 (D.N.J.1987) (exceedingly long trial hinders jury’s ability to devote its full attention to trial),
aff'd in part and rev’d in part,
899 F.2d 211 (3d Cir.1990),
vacated on other grounds,
— U.S. -, 110 S.Ct. 3233 , 111 L.Ed.2d 744 (1990). Those defendants detained before trial are especially disadvantaged.
Gallo,
668 F.Supp. at 753 . The defense attorneys virtually sacrifice the remainder of their practices during the extended trial.
Id.
at 754 . Finally, the court must adjourn the remainder of its civil and criminal calendars for an indefinite period of time.
Id.
at 755 .
See also Vastola,
670 F.Supp. at 1263 (scheduling problems reduced by severance). Acknowledging that severing a large conspiracy case often necessitates “duplicitous, time-consuming and expensive trials,” the court found that the primary duplicative evidence was the “enterprise” evidence introduced to show the existence, structure, and operations of the “Family,” and that this evidence did not consume a great deal of trial time.
Gallo,
668 F.Supp. at 756, 757 . The court noted that the prosecution’s familiarity with the strength of its proofs and the jury’s response to it and the court’s familiarity with the nature of the case and the evidence would result in a quicker and smoother pace in later trials.
Id.
at 757 . Additionally, trial time could be saved if, after exposure to the government’s case in early trials, defendants may plea.
Id.
The court, therefore, severed the trial into (1) a group of three defendants charged with offenses and predicate acts involving a single, discrete episode of criminal activity; (2) a single defendant charged only with obstruction of justice — a count that was ultimately dismissed without going to trial; (3) a single defendant not charged with the substantive RICO
*448
count, but with assisting in bribery and interstate travel relating to a single episode of criminal activity—a charge that resulted in a guilty plea; (4) a group of three defendants who were the only defendants charged in the predicate acts of obstruction of justice by disseminating grand jury matters, although other discrete charges were filed against two of the three; (5) a single defendant who was the only defendant charged with predicate acts that also formed the basis of two substantive counts; (6) a group of four defendants whose conduct concerned two primary areas of criminal activity which were substantially unique to these defendants; and (7) a single defendant for which all charges against him involved no other defendants.
Id.
at 758-60 .
The United States Court of Appeals for the Second Circuit has recently given further guidance to district courts in considering severance motions in large-scale criminal trials. In
United States v. Casamento,
887 F.2d 1141 (2d Cir.1989),
cert. denied,
— U.S.-, 110 S.Ct. 1138 , 107 L.Ed.2d 1043 (1990), the Second Circuit held that severance was not required notwithstanding the complexity of joint trial of twenty-one defendants that spanned more than seventeen months and involved the introduction of thousands of exhibits and the testimony of over 275 witnesses.
Id.
at 1154 . Having misgivings about trials of this magnitude, the court set forth bench marks for the district court to guide the exercise of its discretion for severance motions.
Id.
at 1151-52 . According to the Second Circuit, a trial judge should first elicit from the prosecutor a good faith estimate of the time reasonably anticipated to present the government’s case; the court need not accept the estimate without question but should be free to make an independent assessment based on various factors, including the number of defendants, the time and territorial scope of the crimes charged, the number of witnesses likely to be called, and the number and size of exhibits likely to be introduced, including wiretaps.
Id.
The court stated that, when the government’s case will last more than four months, the prosecutor should “present a reasoned basis to support a conclusion that a joint trial of all the defendants is more consistent with the fair administration of justice than some manageable division of the case into separate trials for groups of defendants.”
Id.
at 1152 . When the government’s case will last more than four months and is brought against more than ten defendants, then the prosecutor should make “an especially compelling justification for a joint trial....”
Id.
In making a showing for a joint trial, the court should weigh the interests of the prosecution, the defendants, the jurors, the court, and the public.
Id.
The United States District Court for the Southern District of New York applied these criteria in
United States v. Gambino,
729 F.Supp. 954 (S.D.N.Y.1990). In
Gam-bino,
the district court severed the trial of fifteen defendants, ten of whom were before the court, into two groups on a seven count indictment alleging 172 overt acts in furtherance of a conspiracy.
Id.
at 971 . One group consisted of the “core of conspirators” who were alleged to have committed almost all acts of violence, including murders, set forth in the indictment.
Id.
The second group consisted of those who “oversaw and facilitated the transportation, smuggling and storage of ... narcotics” and whom the grand jury found participated in a single narcotics conspiracy.
Id.
The court noted that this division would minimize the prejudicial spillover of the alleged acts of violence.
Id.
In
United States v. Vastola,
670 F.Supp. 1244 (D.N.J.1987),
aff'd in part and rev’d in part,
899 F.2d 211 (3d Cir.1990),
vacated on other grounds,
— U.S.-, 110 S.Ct. 3233 , 111 L.Ed.2d 744 (1990), this court declined to sever individual defendants charged in the substantive RICO counts from those named in the RICO conspiracy counts of a 114-count indictment naming twenty-one defendants.
Id.
at 1261-62. Rather, the court severed those defendants charged in the substantive RICO and RICO conspiracy counts from those named only in counts for narcotics, usury and extortion, mail fraud, wire fraud, copyright fraud, insurance fraud, bankruptcy fraud,
*449
gambling, and firearms offenses.
Id.
The court reasoned that, to force the government to try some of the alleged criminal activities separately from others alleged to be part of the same RICO enterprise would prevent the government from prosecuting the type of crimes the statute was intended to combat.
Id.
at 1262 (citing
United States v. Persico,
621 F.Supp. 842, 854 (S.D.N.Y.),
aff'd,
774 F.2d 30 (2d Cir.1985)). The court continued that the indictment properly pleaded a RICO enterprise conspiracy and, thus, all defendants so named to be members of the enterprise could be joined under Rule 8(b) of the Federal Rules of Criminal Procedure.
Id.
(citing
United States v. Somers,
496 F.2d 723, 729 (3d Cir.),
cert. denied,
419 U.S. 832 , 95 S.Ct. 56 , 42 L.Ed.2d 58 (1974) (Rule 8(b) motion addresses pleadings and not subsequent proof)). The court noted its continuing obligation under Rule 14 to evaluate the prejudicial effect of evidence of different types of criminal activity, such as white collar crime and extortion and narcotics activity, and to take necessary steps to avoid such prejudice.
Id.
Here, eight defendants are named in a nine count indictment. Each defendant is named in Count 1 alleging a RICO conspiracy under 18 U.S.C. § 1962 (d). The indictment does not specify overt acts taken in furtherance of the alleged conspiracy in Count 1; rather, it incorporates by reference the racketeering acts, and the overt acts in furtherance of those racketeering acts, alleged in Count 2. Each defendant is either named or incorporated by reference in Count 2, the substantive RICO charge under 18 U.S.C. § 1962 (c) and aiding and abetting under 18 U.S.C. § 2 . The indictment sets forth ten predicate acts establishing a pattern of racketeering activity, including two conspiracies to take over competing gambling operations, threats and acts of violence including conspiracy to commit murder, operating a sports gambling business, operating a numbers gambling business, and financing extortionate extensions of credit. The indictment lists at least two overt acts to support each allegation for conspiracy to take over the Belli gambling business, conspiracy to take over the Stumpo-Barbarulla gambling business, and conspiracy to commit the murder of Vincent Mistretta. Operating a sports gambling business, operating a numbers gambling business, and financing extortionate extensions of credit are also listed in separate counts as substantive offenses (Counts 4, 5, and 9).
Defendants Mylenki, Odierno, and Camis-cioli are incorporated by reference in Count 2; however, the predicate acts for which they are named are nonviolent crimes, that is, Mylenki for sports gambling; Odierno for sports gambling; and Camiscioli for numbers gambling. Likewise, defendant Louis Gatto Jr. is named in Count 2 only for the nonviolent predicate act of operating a sports gambling business.
All eight defendants have moved for severance of his trial based on Rule 14 of the Federal Rules of Criminal Procedure.
The court notes initially that this indictment names fewer defendants and has fewer counts than the cases discussed
supra,
in which each district court severed the trials of certain defendants.
See Gambino,
729 F.Supp. at 956-57, 970 (7 counts, 15 defendants);
Vastola,
670 F.Supp. at 1251 (114 counts, 21 defendants);
Gallo,
668 F.Supp. at 738 (22 counts, 16 defendants). Thus, the complexity of the trial here is not as extreme as the cases cited. Although the complexity of the trial increases as the number of counts and defendants in the indictment increases, this case presents neither double-digit defendants nor double-digit counts.
The indictment, however, charges more than one conspiracy. Count 1 charges a RICO conspiracy; Count 2 lists (1) conspiracy to take over the Belli gambling business as a racketeering act; (2) conspiracy to take over the Stumpo-Barbarulla gambling business as a racketeering act; and (3) conspiracy to commit the murder of Vincent Mistretta as a racketeering act. Each conspiracy involves different defendants in different combinations. Thus, the jury will be required to distinguish separate conspiracies and conspirators. As alleged members of the same conspiracy,
*450
statements of one coconspirator would be conditionally admissible against all other defendants alleged to have participated in that conspiracy; thus, the jury may have to segregate or to remember over the course of a lengthy trial which statements were admissible against which defendant. Limiting instructions to the jury regarding what evidence was admissible against which defendant would be extraordinarily complex.
In making its determination on severance, the court must also consider “disparities in the amount or type of proof offered against the defendants; disparities in the degrees of involvement by defendants in the overall scheme; possible conflict between the various defense theories or trial strategies; and, especially, prejudice from evidence admitted only against co-defendants but which is inadmissible or excluded as to a particular defendant.”
Gallo,
668 F.Supp. at 749 .
A lengthy trial may prejudice those defendants against whom much of the evidence is not relevant simply by the “ ‘slow but inexorable accumulation of evidence’ against the major players.”
Id.
at 750 . This prejudice would be especially acute for those defendants not charged with violent acts, since proof of the substantive RICO count includes,
inter alia,
acts of murder, beatings, and threats. Those defendants charged with operating gambling businesses that are predicate acts for the substantive RICO charge may be prejudiced by this evidence at a joint trial. Such prejudice is presented by the admission of cocon-spirators’ statements made in the course of a conspiracy to commit a violent act, such as the murder of Vincent Mistretta, when a defendant was not a member of that conspiracy. Although admissible against some defendants, such statements would not be admissible against all defendants. Joint trial would put these statements before the jury and could prejudice defendants not charged with the conspiracy. This disparity in the degree of participation in the violent crimes charged as predicate acts substantially prejudices those defendants not charged with heinous acts. Nonetheless, if members of the enterprise, these defendants may have acquiesced in the acts of violence or tacitly approved of such acts. Defendants have offered no evidence that any will present antagonistic defenses.
Three defendants are currently detained before trial.
See United States v. Gatto,
727 F.Supp. 903 (D.N.J.1989). Thus, the length of detention before they may be proved guilty of any crime may be further extended by a prolonged trial. This factor weighs heavily in favor of expediting their trial by severing the trials of peripheral defendants.
This court has previously determined that severance of trials for defendants named in a substantive RICO count from those named in a RICO conspiracy count was not appropriate.
See Vastola,
670 F.Supp. at 1261-62 .
Cf. Gambino,
729 F.Supp. at 970-71 (alleged coconspirators divided into two groups, one of which contained leaders of conspiracy who were active over its entire length and committed nearly all alleged acts of violence). In
Vas-tóla,
the court reasoned that the government should not be prevented from prosecuting those cases that the RICO statute was intended to combat.
Vastola,
670 F.Supp. at 1262 . Additionally, the similarities in proofs for the substantive RICO and RICO conspiracy counts substantially overlap. Alleged participants in a conspiracy should ordinarily be tried together for purposes of judicial efficiency and consistency, even when the quantum of evidence against each defendant varies widely.
See United States v. Ward,
793 F.2d 551, 556 (3d Cir.1986). Nonetheless, the rationale of judicial efficiency that supports joint trial of coconspirators is not met when the size of the conspiracy is so large that trial consumes months and months of the court’s schedule.
Here, the government estimates that its case will take three months to present. Defendants estimate that the complete trial will take over a year. The court is extremely reluctant to ask jurors to spend the next.year serving in federal court because such service causes an enormous disruption in their lives. This disruption may distract
*451
from the jury’s ability to devote its full attention to the trial and to render a fair verdict. This court may also consider judicial administration in determining whether to sever the trial of certain defendants. A lengthy trial would necessitate adjournments and cause delays in this court’s already overloaded civil and criminal calendar. Although severing a conspiracy trial may require the presentation of duplicative evidence, the pace of later trials would quicken with the government’s and the court’s familiarity with the case.
See Gallo,
668 F.Supp. at 757 .
The court is also concerned about the potential for prejudicial spillover from the government’s case against defendants Louis Gatto Sr., Alan Grecco, Stefano Maz-zola, and Joseph Gatto. These defendants are named in racketeering acts that include acts of violence, such as conspiracy to commit murder and extortionate collections of credit. Defendants Louis Gatto Jr., Odier-no, Mylenki, and Camiscioli, however, are named only as managers in the sports or numbers gambling businesses. The court finds that a lengthy trial that requires proof of violent crimes may prejudice the defendants not charged with violent crimes.
The court concludes that, due to the multiple conspiracies charged in the indictment, the jury may be unable to compartmentalize the evidence against each defendant for each conspiracy. Additionally, because the lengthy joint trial of this case would cause extreme hardship to the court, the jury, the defendants, and counsel, and because those defendants not charged with violent predicate acts may be prejudiced by substantial proof of violent acts by code-fendants, this court will sever the trials into two group trials. The first group will consist of defendants Louis Gatto Sr., Alan Grecco, Stefano Mazzola, and Joseph Gatto. The second group will consist of defendants Louis Gatto Jr., Odierno, Mylenki, and Camiscioli. Severance along these lines will permit expedited trial of all defendants currently detained before trial. Additionally, those defendants charged with violent predicate acts will be segregated from those defendants who are not, minimizing the potential for prejudicial spillover. While the court recognizes that such a severance may require some duplicity, in a complicated, multi-count, multidefendant RICO and RICO conspiracy trial, such a severance may serve judicial economy and improve the likelihood that the jury will return a fair verdict.
2. Need for Exculpatory Testimony
Defendants Camiscioli and Grec-co also move for severance of their trials based on the need for codefendants’ testimony that purportedly will exculpate them. Defendants Louis Gatto Sr., Joseph Gatto, and Louis Gatto Jr. (“Gatto defendants”) join in all motions of defendant Grecco;
2
presumably, they each assert the need for the exculpatory testimony of a codefend-ant.
Persons who are properly joined in an indictment generally are to be tried together, particularly if conspiracy is charged, so that the full extent of the conspiracy may be developed.
United States v. Provenzano,
688 F.2d 194,199 (3d Cir.),
cert. denied,
459 U.S. 1071 , 103 S.Ct. 492 , 74 L.Ed.2d 634 (1982). Severance of trials may be required, however, where one defendant’s testimony will exculpate a eodefendant. Where a motion for severance is based on the asserted need for a codefendant’s testimony, the moving defendant must establish (1) a bona fide need for the testimony of his codefendant, (2) the likelihood that the co-defendant would testify at a second trial and waive his fifth amendment privilege, (3) the substance of his codefendant’s testimony, and (4) the exculpatory nature and effect of such testimony.
United States v. Boscia,
573 F.2d 827, 832 (3d Cir.),
cert. denied,
436 U.S. 911 , 98 S.Ct. 2248 , 56
*452
L.Ed.2d 411 (1978). Once defendant has made such a showing, the court must (1) examine the significance of the testimony-in relation to the defendant’s theory of defense; (2) assess the extent of prejudice caused by the absence of the testimony; (3) pay close attention to judicial administration and economy; (4) give weight to the timeliness of the motion; and (5) consider the likelihood that the codefendant’s testimony could be impeached.
Provenzano,
688 F.2d at 199 ;
United States v. Butler,
611 F.2d 1066, 1071 (5th Cir.1980).
To satisfy the requirement to show that the codefendant would testify and waive his fifth amendment privilege at a severed trial, the movant is not required to establish such willingness to “an absolute certainty;” he need only show “[a] reasonable probability ... that the proffered testimony would, in fact, materialize.... ”
United States v. Shuford,
454 F.2d 772, 778 (4th Cir.1971). The requirement of a showing of willingness to testify if there is a severance is
not
met when that offer to testify is conditioned on the codefendant’s case being tried first.
United States v. Parodi,
703 F.2d 768, 779 (4th Cir.1983) (no severance required where codefendant did not testify in own defense);
United States v. Frazier,
394 F.2d 258, 261 (4th Cir.) (gamble that codefendant would “throw [defendant] a bone by way of alibi” insufficient),
cert. denied,
393 U.S. 984 , 89 S.Ct. 457 , 21 L.Ed.2d 445 (1968) (condition that codefend-ant be tried first vitiates good faith of the proffer).
The requirement that the movant establish the “exculpatory nature and effect” of the codefendant’s testimony demands more than a “vague and conclusory statement of counsel of facts of purely cumulative or negligible weight or probative value,”
Par-odi,
703 F.2d at 780 ; the showing must be sufficiently definite for a determination by the trial court of the testimony’s exculpatory nature and effect.
United States v. Butler,
611 F.2d 1066, 1071 (5th Cir.),
cert. denied,
449 U.S. 830 , 101 S.Ct. 97 , 66 L.Ed.2d 35 (1980) (testimony not so clearly exculpatory to justify midtrial severance). The showing must be such as to establish that the moving defendant “will be unable to obtain a fair trial without severance, not merely that a separate trial would offer him [or her] a better chance of acquittal,”
United States v. Papia,
560 F.2d 827, 836 (7th Cir.1977), or to offer evidence that “merely contradicts part of the Government’s proof.”
United States v. West,
670 F.2d 675, 680 (7th Cir.),
cert. denied,
457 U.S. 1124 , 102 S.Ct. 2944 , 73 L.Ed.2d 1340 (1982). The trial court must also assess the “degree to which the testifying co-defendant could be impeached.”
United States v. Provenzano,
688 F.2d at 199 . Finally, the court must consider judicial economy and timeliness of defendant’s motion.
Applying these factors to the individual defendants, the court finds that no defendant has met his burden to show that this court must sever his trial to permit a code-fendant’s testimony that would exculpate him. Defendants Camiscioli, Louis Gatto Sr., Joseph Gatto, and Louis Gatto Jr. have failed to make a bona fide showing of the need for the testimony of a codefendant. The court will deny their motions to sever on this basis. Defendant Grecco contends that Joseph Gatto can exculpate him from charges that he threatened Stumpo or that he attended a meeting at which the murder of Arthur Belli was planned. Grecco has failed to establish, however, any likelihood that Joseph Gatto would waive his fifth amendment privilege to testify at a second trial for Grecco. While the substance of such testimony shows it would be exculpatory, Grecco has not met his initial burden to show there is a reasonable probability that Joseph Gatto would testify at separate trials. Thus, this court need not consider whether Joseph Gatto is impeachable. Grecco’s motion for severance of his trial will be denied on the basis of the need for a codefendant’s exculpatory testimony.
B.
Motions Attacking the Indictment
1. Motion to Strike Violent Acts from Indictment
Defendant Grecco and the Gat-to defendants argue that this court should strike from the indictment any reference to
*453
homicides and other violent acts because the charges are brought in bad faith by the government, are stale, and severely prejudice defendants’ ability to obtain a fair trial. They maintain that the government deliberately delayed the indictment to prejudice defendants by the absence of potential alibi witnesses through death or unavailability and that such prejudice substantially outweighs the probative value of such evidence.
Defendants contend that the allegations of violent acts are brought in bad faith because they have nothing to do with the central charge of gambling; therefore, this court must strike the acts of violence from the indictment, (citing
United States v. Aiken,
373 F.2d 294, 299 (2d Cir.),
cert. denied,
389 U.S. 833 , 88 S.Ct. 32 , 19 L.Ed.2d 93 (1967)).
Aiken ,
however, stands for the proposition that, where join-der of offenses is originally proper under Rule 8(b) of the Federal Rules of Criminal Procedure, a motion for severance after dismissal of the count justifying joinder will not be granted unless defendant is prejudiced by joinder or the count dismissed was not alleged in good faith, that is, with reasonable expectation that sufficient proof would be forthcoming at trial.
Id.
The case in no way supports striking the violent acts from the indictment for charges brought in bad faith. Even if
Aiken
stood for this proposition, defendants have not shown that the government brought the charges without reasonable expectation that sufficient proof would be forthcoming at trial to link the violent acts with the gambling operations. In fact, the prolonged detention hearings in this case show that the government has adequate evidence to support a reasonable expectation that sufficient proof will be presented at trial.
See United States v. Gatto,
727 F.Supp. 903, 915 (D.N.J.1989) (evidence of dangerousness is clear, convincing, and overwhelming). At the detention hearings, the government presented evidence that violent acts were committed to accomplish the takeover of competing gambling businesses; this nexus sufficiently links the acts of violence to the central charge of gambling to warrant inclusion of the violent acts here. The government also presented evidence that Vincent Mistretta was murdered to prevent his becoming an informant against defendants, thereby protecting the gambling business from law enforcement. This nexus likewise connects the allegations of violence to the gambling business.
In the alternative, defendants argue that they are severely prejudiced by the delay of the government in returning an indictment on these acts of violence; thus, the court must dismiss the indictment. The due process clause of the fifth amendment may require dismissal for preindictment delay where the delay is an intentional device to gain tactical advantage over the accused.
See United States v. Marion,
404 U.S. 307, 325 , 92 S.Ct. 455, 466 , 30 L.Ed.2d 468 (1971) (due process claims premature where no actual prejudice alleged and no showing that government intentionally delayed to gain tactical advantage). Defendants here claim that preindictment delay gives the government a tactical advantage because witnesses who could exculpate them are dead or otherwise unavailable; therefore, they are substantially prejudiced. The United States Supreme Court, however, has stated that, while prejudice is an element of a claim for due process violation by preindictment delay, it is not necessarily sufficient evidence of a due process violation.
See United States v. Lovasco,
431 U.S. 783, 790 , 97 S.Ct. 2044, 2049 , 52 L.Ed.2d 752 (1977) (due process inquiry into reason for delay). Rather, the court must consider the reason for the delay; a good faith investigative delay does not violate due process.
Id.
at 790-91 , 97 S.Ct. at 2049 . The Court noted that a prosecutor abides by the elementary standards of “fair play and decency” by refusing to seek indictments until he or she “is completely satisfied that he [or she] should prosecute and will be able promptly to establish guilt beyond a reasonable doubt.” Id. at 795 , 97 S.Ct. at 2051 .
Here, the government has offered evidence that defendants’ intimidation of witnesses caused the delay in prosecuting the violent acts. Thus, the government has not
*454
delayed the indictments to gain a tactical advantage; rather, the government contends it refused to seek an indictment until the prosecutor was satisfied that the government could obtain a conviction. Delay caused by the government’s carefully building its' case from the testimony of reluctant witnesses does not offend this court’s notion of fair play and decency. Additionally, defendants have failed to show that the unavailable witnesses could have provided any relevant evidence; thus, any prejudice is potential and not actual. The court will deny defendants’ motion to dismiss the indictment or to strike alleged violent acts from the indictment for prein-dictment delay.
Finally, defendants contend that the court should strike the allegations of violent acts because the prejudice to defendants caused by the introduction of such evidence far exceeds the probative value under Rule 403 of the Federal Rules of Evidence. Defendants contend that the government should not be permitted to refer to such acts in its opening argument because such evidence will not be admissible. The violent acts, however, are the predicate racketeering acts for the substantive RICO count. As such, these acts represent an element of the RICO offense. The court rejects this utterly meritless argument.
2. RICO’s “Pattern of Racketeering” Requirement is Unconstitutionally Vague
Defendants contend that the RICO statute is unconstitutionally vague because the pattern of racketeering requirement is not defined with sufficient clarity to place defendants on notice as to what conduct is proscribed, citing
H.J., Inc. v. Northwestern Bell Telephone Co.,
— U.S.-, 109 S.Ct. 2893, 2909 , 106 L.Ed.2d 195 (1989) (Scalia, J., concurring) (“today’s meager guidance bodes ill for the day when [a constitutional] challenge is presented”).
The United States Supreme Court considered the “pattern of racketeering” requirement in the context of a civil RICO action in
H.J., Inc. v. Northwestern Bell Telephone Co.,
— U.S. -, 109 S.Ct. 2893 , 106 L.Ed.2d 195 (1989). In
H.J., Inc.,
the Supreme Court held that the district court erred in dismissing for failure to state a cause of action a civil RICO challenge to Northwestern Bell’s alleged scheme to bribe members of a state public utility commission to obtain favorable rate rulings.
Id.
109 S.Ct. at 2906 . The
H.J., Inc.
Court explained that to prove RICO’s “pattern of racketeering, a plaintiff or prosecutor must show that the racketeering predicates are related,
and
that they amount to or pose a threat of continued criminal activity.”
Id.
at 2900 (emphasis in original). The Court stated that evidence of multiple schemes of criminal conduct is highly probative of the continuous nature of defendant’s criminal conduct, but that multiple schemes are not a necessary element of a RICO pattern.
Id.
at 2901 . According to the Court, a party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time.
Id.
at 2902 . For example, the Court noted that the threat of continuity is sufficiently established where the predicate acts can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes.
Id.
A pattern may also be established through proof that predicate acts forming a single criminal scheme were “a regular way of conducting defendant’s ongoing legitimate business.”
Id.
The Court found that plaintiffs might be able to prove a pattern of racketeering that Northwestern Bell gave five members of the commission numerous bribes over the course of six years with the objective of causing these commissioners to approve unfair rates because the acts of bribery are related by a common purpose and the predicates occurred with some frequency over a six year period.
Id.
at 2906 .
• The United States Court of Appeals for the Third Circuit recently applied the teachings of
H.J., Inc.
in
United States v. Pungitore,
910 F.2d 1084 (3d Cir.1990). In
Pungitore ,
the Third Circuit soundly rejected appellants’ contention that they lacked notice that their conduct, which included
*455
murder, extortion, illegal gambling, and usury offenses, constituted a “pattern” under RICO as “utterly devoid of merit.” 910 F.2d at 1104 . The Third Circuit noted that a statute is unconstitutionally vague when it “either forbids or requires the doing of an act in terms so vague that [persons] of ordinary intelligence must necessarily guess as to its meaning and differ as to its application.”
Id.
at 1104 (citing
Connatty v. General Construction Co.,
269 U.S. 385, 391 , 46 S.Ct. 126, 127 , 70 L.Ed. 322 (1926)). The court stated that it need not consider whether the pattern requirement was unconstitutionally vague if it first found that persons of ordinary intelligence would know that repeated commission of murder, extortion, gambling, and usury offenses in furtherance of an organized crime enterprise constituted a pattern of racketeering activity under RICO.
Id.
at 1104. The court found that appellants’ activities clearly met the “relationship plus continuity” test for a pattern because the conduct extended over a substantial time and the predicate acts were related because they were committed in furtherance of the affairs of the enterprise.
Id.
at 1104-1105.
This court finds no distinction between
Pungitore
and the case at bar. The threat of continuity is sufficiently established here because the alleged predicate acts of murder, extortion, illegal gambling can be attributed to defendants’ operating as part of a long-term association that exists for criminal purposes. As in
Pungitore ,
defendants here allegedly “have engaged in a classic pattern of racketeering under RICO” such that their contention that they lack notice that such conduct was proscribed is without merit.
Id.
at 1105 . Defendants’ motion to dismiss the indictment because RICO is unconstitutionally vague will be denied.
3. Motion to Strike Prejudicial Surplus-age
Under Rule 7(d) of the Federal Rules of Criminal Procedure, this court may strike surplusage from the indictment upon defendant’s motion. Fed.R.Crim.P. 7(d);
United States v. Moya-Gomez,
860 F.2d 706, 762-63 (7th Cir.1988) (court may strike superfluous language that unfairly prejudices accused). The purpose of Rule 7(d) is to protect a defendant against prejudicial allegations that are neither relevant nor material to the charges made in the indictment.
United States v. Fahey,
769 F.2d 829, 841-42 (1st Cir.1985);
United States v. Ramirez,
710 F.2d 535, 544-45 (9th Cir.1983).
A motion to strike surplusage from an indictment is addressed to the sound discretion of the District Court and should be granted only where it is clear that the allegations contained therein are not relevant to the charge made or contain inflammatory and prejudicial matter.
Vastola,
670 F.Supp. at 1254 (quoting
Dranow v. United States,
307 F.2d 545, 558 (8th Cir.1962)).
Defendants maintain that reference in the indictment to aliases and the “Gatto group” severely prejudices them. Defendant Mazzola moves to strike the entire preamble to the indictment, which refers to the Gatto group as part of the Genovese crime family, LaCosa Nostra, or Mafia. Mazzola also moves to strike “catch-all” phrases, such as “elsewhere,” “others,” and “among others” because such terms permit the jury to infer that defendants were involved in activities not charged in the indictment.
United States v. Hubbard,
474 F.Supp. 64, 82-83 (D.D.C.1979) (“various,” “among other things,” “at least,” “besides the defendants,” and “and related matters” stricken). Curiously, defendants also request that this court strike reference to the murder of Vincent Mistretta, threats and violence, and the murder of Arthur Belli as prejudicial surplusage. Likewise, Mazzola contends that the government can not show that the attack on him was staged and, therefore, all references to the attack must be stricken.
a. Reference to the “Gatto Group” and “Genovese Crime Family”
In
United States v. Vastola,
899 F.2d 211, 232 (3d Cir.1990),
vacated on other grounds,
— U.S. -, 110 S.Ct. 3233 , 111 L.Ed.2d 744 (1990), the United
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States Court of Appeals for the Third Circuit held that reference to the “Vastóla Organization” in the superseding indictment did not convey any prejudicial information to the jury that was not already demonstrated by the government’s evidence.
Id.
The court recognized that the government’s naming of the enterprise after one of the defendants had the potential for prejudice, as would identification of a defendant by a damaging alias.
Id.
The court noted that the risk for unfair prejudice is greatest where the defendant is only loosely affiliated with the enterprise because, in such circumstances, a jury could infer an essential element of the RICO offense, that is, participation in the enterprise, from the unsupported allegations in the indictment.
Id.
The Third Circuit nonetheless found that the evidence clearly showed that Vastóla was in charge of the organization because the majority of the enterprise’s illegal loans were subject to Vastola’s approval and that coconspirators understood other key players to be “Vasto-la’s people.”
Id.
In light of the evidence in the record, the court found that the district court’s refusal to issue a cautionary instruction to the jury not to consider the enterprise’s name as evidence of guilt was at most harmless error.
Id.
The court suggested, however, that redacting the indictment or delivering a specific instruction cautioning the jury not to consider the enterprise’s name as evidence of guilt “might very well be appropriate.”
Id.
Here, the government does not oppose redacting the indictment to delete the phrase “Gatto group,” suggesting “criminal enterprise” as a substitute. Given the Third Circuit’s caution in
Vastóla,
this court finds the safest course of action is to order that the government redact the indictment to exclude the phrases “Gatto Group.” Substituting the phrase “criminal enterprise” will remove the potential for unfair prejudice and preclude the need for cautionary instructions. The court, however, finds no prejudicial connotation in the word “Group.” The jury could not infer guilt of a particular defendant from the term “Group;” therefore, the court will deny defendants’ motion to strike the term from the indictment.
Defendants also argue that reference in the preamble to LaCosa Nostra, the Mafia, and the Genovese crime family is prejudicial and inflammatory. This court, in dicta, has previously noted that the function of a preamble in the indictment “should be to serve as a guide to what is alleged in the counts that the jury will actually evaluate. It should not contain additional information to what is alleged in the counts, nor should it contain terminology that carries with it connotations of culpable behavior.”
Vastó-la,
670 F.Supp. at 1255 (“and with others,” “and others,” “and other criminal means” stricken).
The determinative question, however, is the relevance of the challenged references to the crime charged in the indictment.
United States v. Giovanelli,
No. S 88 Cr. 954 (CBM) 1989 WL 49245 (S.D.N.Y. May 2, 1989) (available at 1989 U.S.Dist. LEXIS 4438). An indictment may properly include any allegation that is “relevant to the case and will constitute part of the government’s proof at trial.”
United States v. Persico,
621 F.Supp. 842, 860 (S.D.N.Y.) (quoting
United States v. Esposito,
423 F.Supp. 908, 911 (S.D.N.Y.1976)),
aff'd, 11 A.
F.2d 30 (2d Cir.1985).
Evidence regarding the hierarchy of control within an organized crime family may clarify the structure of the enterprise.
United States v. Rastelli,
653 F.Supp. 1034, 1056 (E.D.N.Y.1986) (defendant’s description as “capo” properly included in indictment). The indictment here alleges that Louis Gatto Sr. is a Capo in the Ge-novese crime family. The government contends that it will present evidence that the criminal enterprise was a faction of the Genovese crime family and that much of their power came from that criminal association. Such evidence would be relevant to show the structure of the criminal enterprise alleged in the indictment. The court will reserve judgment pending the close of the government’s case whether the government has shown sufficient nexus between the criminal enterprise alleged here and the Genovese crime family.
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b. Aliases
Generally, the inclusion of an alias, even one with a strong negative connotation, is permissible if needed to connect the accused to the acts charged.
Persico,
621 F.Supp. at 860-61 (even prejudicial nicknames and aliases proper if part of government’s proof at trial). In
Pérsico,
the United States District Court for the Southern District of New York refused to redact the indictment before trial, reasoning that the aliases might be integral to the government’s case because the primary evidence consisted of wiretaps in which defendants referred to one another by their aliases.
Id.
The court stated that it would consider redacting the indictment at the close of the government’s evidence if the government had failed to introduce proof of the aliases.
Id.
The indictment here names two aliases: Louis Gatto Sr. a/k/a “Streaky” and Alan Grecco a/k/a Alan Wolshonak. The court notes initially that Alan Wolshonak is not an alias but was the defendant’s original legal name; he legally changed that name from Wolshonak to Grecco. Second, the name “Grecco” carries with it no prejudicial connotation. Finally, the name is needed to connect Grecco to one of the crimes charged, that is, the murder of Vincent Mistretta. According to the government, Mistretta’s dying words were “AI Wolshonak did it.” The court finds no reason to strike this “alias” from the indictment.
As for Louis Gatto Sr., the court agrees with the
Pérsico
court that the alias “Streaky” might be integral to the government’s case; thus, striking the alias pretrial is inappropriate. As in
Pérsico,
the government intends to introduce evidence consisting of wiretaps in which defendants may refer to one another by aliases. This court will consider redacting the indictment at the close of the government’s evidence, upon defendant’s motion, if the government fails to introduce proof of the alias.
See id.
c. “Catch-all” Phrases
This court has previously stricken vague language from an indictment where the language is not specifically relevant to all the crimes alleged because such terms may permit the jury to draw improper inferences. Vast
ola,
670 F.Supp. at 1255 (terms such as “various,” “among other things,” and “at least,” stricken from indictment); Such terminology implies that defendants committed crimes not charged in the indictment, allowing the prosecution to enlarge impermissibly the allegations in the indictment.
United States v. Fahey,
769 F.2d 829, 842 (1st Cir.1985) (terms such as “numerous,” “among other things” not stricken because not prejudicial). “Anything in the indictment that allows the jury to infer involvement with uncharged crimes ... is improper.”
Vastola,
670 F.Supp. at 1255 (citing
United States v. DeFabritus,
605 F.Supp. 1538, 1547 (S.D.N.Y.1985);
United States v. Hubbard,
474 F.Supp. 64, 82-83 (D.D.C.1979)). Nonetheless, terms that are not used in a prejudicial or misleading fashion are not properly stricken.
Fahey,
769 F.2d at 842 . The court, therefore, must make an initial determination whether the challenged terminology refers to crimes charged in the indictment and whether such use is prejudicial.
The term "elsewhere” appears throughout the indictment. In each count and each predicate racketeering act, the government contends that defendants acted in the District of New Jersey and “elsewhere.” Thus, the term relates to specific charges in the indictment. The term may be prejudicial if it implies a broader scope of illegal activity than actually alleged in the indictment. This analysis applies equally to the term “others.” The government contends that it will present evidence that seventy others were employees or coconspirators. Defendants, however, would be prejudiced by the inclusion of these terms in the indictment if the government fails to show involvement of other persons or conduct taking place outside the District of New Jersey because the terms suggest a broader participation in illegal conduct.
This court has previously stricken terms such as “and others” without foreclosing the government from presenting any proof relevant to the charges at trial.
See Vasto-
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la,
670 F.Supp. at 1256-57 (defendant’s motion to strike surplusage granted in part). Other courts have reserved decision until the close of the evidence.
See Fahey,
769 F.2d at 842 (court reserved decision until close of evidence). Reserving until the close of the government’s case, however, permits the jury to hear the terms during the court’s recitation of the indictment at the opening of the case.
See Vastola,
670 F.Supp. at 1255 . If the court later determines that the terms are irrelevant and should be stricken from the indictment, the prejudice to the defendants could not be undone.
Id.
The court, therefore, will strike the reference in the indictment without foreclosing the government’s ability to present such evidence.
d. References to Acts of Violence
Finally, defendants move to strike references to the Mistretta murder, the attack on Mazzola, allegations of threats and violence, and racketeering acts as objectionable terms. The Mistretta murder, threats to those in competing gambling businesses, and threats to those owing credit to the group all appear as predicate acts for the substantive RICO count. The terms are clearly relevant to the charges in the indictment. The jury could not possibly infer involvement with uncharged crimes because these crimes are charged in the indictment. The court, therefore, can perceive no prejudice to defendants.
Likewise, the court will not strike the term “racketeering” from the indictment. The word “racketeering” is a statutory term and is used throughout the indictment in a reasonable manner.
See Vastola,
670 F.Supp. at 1255 . The challenge to its use is without merit.
The reference in the preamble to the indictment to the staged attack on defendant Mazzola is a different matter. The preamble to the indictment states:
The Gatto Group used force and violence to establish a climate of fear and to obstruct law enforcement. To that end, members of the group murder Vincent Mistretta, whom they suspected was providing information about the Gatto group to law enforcement. Additionally, they staged what appeared to be a violent attack on defendant Stefano Mazzola, who was then a police officer, so that a Group associate could appear to rescue Mazzola and thus receive favorable treatment on a subsequent criminal sentence.
Indictment ¶ 1(g), at 4. Notably, the staged attack is not alleged to be a predicate racketeering act in the indictment nor is it alleged to be an overt act in furtherance of any conspiracy alleged in the indictment. Additionally, the indictment fails to specify how the staged attack allegedly furthers the purposes of the enterprise. The information is prejudicial and inflammatory. The allegation implies that the attack was “staged” for an improper purpose. The act involves used of deadly weapons. At the time of the alleged incident, Mazzola was a police officer required to uphold the law. The conduct, however, was not charged in the indictment as either a substantive offense, a predicate act, or overt act in furtherance of a conspiracy. The preamble should not contain information beyond what is alleged in the counts, nor should it contain terminology that carries with it connotations of culpable behavior.
Vastóla,
670 F.Supp. at 1255 .
The government argues that evidence of the attack is admissible to show the relationship between a key government witness and the defendants. Whether or not evidence about the attack is admissible, however, is immaterial to the determination whether such information is properly included in the indictment; the court rejects the government’s attempt to equate admissibility of evidence with proper inclusion in the indictment. The court need not, at this time, consider whether evidence of such acts is prohibited by Rule 404(b) of the Federal Rules of Evidence (evidence of extrinsic acts to prove propensity for crime) or whether such evidence is unfairly prejudicial under Rule 403 of the Federal Rules of Evidence. The court finds, however, that the government’s reference to the staged attack on Mazzola in the preamble of the indictment improperly includes allegations not charged in the counts. The information is both prejudicial and inflam
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matory; thus, this court will order that the information be stricken from the preamble to the indictment.
Defendants’ motions to strike surplusage from the indictment, therefore, will be granted in part and denied in part.
4. Motion to Dismiss Counts Charging Multiple Offenses
Defendant Grecco moves to dismiss the indictment because Count 1 alleges, and the remaining counts incorporate by reference, both sports gambling offenses and numbers gambling offenses. Defendants argue that, because different facts must be proven for each offense, a jury could find a defendant guilty of one offense but not the other, yet a general verdict would not reflect the acquittal.
Racketeering conspiracies, however, often embrace diversified activity involving many different crimes.
See United States v. Turkette,
452 U.S. 576, 588 , 101 S.Ct. 2524, 2531 , 69 L.Ed.2d 246 (1981) (arson, mail fraud, and bribery used for purpose of illegally trafficking in narcotics);
United States v. Riccobene,
709 F.2d 214, 229 (3d Cir.) (loansharking, mail fraud, and gambling), ce
rt. denied sub nom., Ciancaglini v. United States,
464 U.S. 849 , 104 S.Ct. 157 , 78 L.Ed.2d 145 (1983). The court can mold a proper verdict that is sufficiently clear for appellate review by providing the jury special interrogatories as to the predicate racketeering acts. Defendants’ motion to dismiss the indictment on this basis, therefore, will be denied.
5. Motion to Dismiss Count One for Failure to Specify Predicate Acts
Defendants move to dismiss Count 1 of the indictment, the RICO conspiracy count, because it fails to specify predicate offenses that defendants are alleged to have committed. Rather, Count 1 provides that the pattern of racketeering activity was “of the type” alleged in Count 2.
The United States Court of Appeals for the Third Circuit recently approved of an indictment’s general identification of the acts underlying a RICO conspiracy charge and held that the government could rely on any act of bribery and extortion, even beyond those set forth as racketeering acts in Count 2 of the indictment, so long as that act occurred within the time frame of the conspiracy and was established by proofs at the trial.
United States v. Phillips,
874 F.2d 123, 130 (3d Cir.1989). Count 1 alleged the elements of a RICO conspiracy under 18 U.S.C. § 1962 (c) stating that “defendants conspired to commit ‘multiple’ acts of bribery in violation of [state law] and extortion in violation of [federal law],” but failed to specify with particularity which acts of bribery and extortion defendants agreed to commit.
Id.
at 125 , 127 n. 4. The
Phillips
defendants attacked the indictment arguing that Count 1 was merely the conspiracy analogue to the substantive offense charged in Count 2; thus, the government had to prove that defendants agreed to commit two or more of the predicate acts set forth in Count 2 and was precluded from proving other acts to support the conspiracy charge.
Id.
at 127 .
The Third Circuit acknowledged that it was troubled by the sufficiency of the conspiracy charge because it failed to specify with particularity which acts of bribery and extortion defendants allegedly agreed to commit.
Id.
at 127 n. 4. Nonetheless, the court found that the indictment sufficiently apprised defendants of the charges against them and protected them against future double jeopardy problems.
Id.
(citing
United States v. Kenny,
462 F.2d 1205, 1214 (3d Cir.) (indictment charging underlying elements of crime by reference to statutory violations of extortion and bribery not vague under fifth and sixth amendments), ce
rt. denied,
409 U.S. 914 , 93 S.Ct. 233 , 234, 34 L.Ed.2d 176 (1972)). The court noted, however, that the other deficiencies in the indictment were waived by defendants’ failure to appeal the denial of their request for a bill of particulars.
Id.
at 128 n. 5. Notwithstanding the generality of Count l’s language, the court reluctantly followed its prior decision in
Kenny
and held that, to support the conspiracy convictions, the jury must find that:
each defendant knowingly and willfully agreed to join a conspiracy with know!
*460
edge of its goals and knowledge that at least two acts of racketeering
of the type described in the indictment
(i.e., bribery under state law and extortion under federal law) would be performed by some member(s) of the conspiracy.
Id.
at 128 (quoting district court’s slip opinion) (emphasis added).
The
Phillips
case is distinguishable from the case at bar. In
Phillips ,
the conspiracy count specifically referred to two types of predicate acts that supported the conspiracy charge, that is, bribery or extortion; thus, the government could properly present evidence of
any
bribery or extortion offense during the period of the conspiracy in addition to its evidence of the racketeering acts charged in Count 2. Thus, defendants were on notice of the conduct that the government sought to prove; the racketeering acts plus other acts of bribery and extortion. Here, the conspiracy charge refers only to acts “of the type” in Count 2. Count 2 alleges racketeering acts including two conspiracies to take over gambling businesses, conspiracy to commit murder, sports gambling, numbers gambling, and extortionate financing of credit, and extortionate collections of credit. The court finds that reference to acts “of the type” in Count 2 is so broad and general as to fail to give defendants notice of the charges against them. While
Phillips
permits the government to prove other acts to support conspiracy beyond those listed as racketeering acts, the government can not expand that scope indefinitely. Given the Third Circuit’s hesitance in
Phillips ,
this court will not extend that holding to a case in which the government fails to specify any type of acts in the conspiracy count. An indictment is sufficient “if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he [or she] must defend, and, second, enables him [or her] to plead an acquittal or conviction in bar of future prosecutions for the same offense.”
Hamling v. United States,
418 U.S. 87, 117 , 94 S.Ct. 2887, 2907 , 41 L.Ed.2d 590 (1974) (citing
United States v. Debrow,
346 U.S. 374 , 74 S.Ct. 113 , 98 L.Ed. 92 (1953);
Hagner v. United States,
285 U.S. 427 , 52 S.Ct. 417 , 76 L.Ed. 861 (1932)). The language of Count 1 charging defendants with conspiracy to participate “in the conduct of the affairs of the ... Group through a pattern of racketeering of the type alleged in Count Two ... and through the collection of unlawful debts” fails to meet this standard.
This defect can be cured by granting in part defendants’ request for a bill of particulars. Defendant Grecco requests that the government set forth the dates of all meetings, names of all persons murdered, and the dates and places of each murder or extortionate act in which defendant allegedly participated and the specific dates of the alleged conspiracy. The government must generally identify what “types” of acts, beyond the collection of unlawful debts, support the charge of conspiracy.
See infra
at section (D)(5) (government must specify names of participants in alleged offenses and specific dates and locations of alleged acts). Failure to do so will restrict the government to proofs of the specific racketeering acts listed in Count 2.
See United States v. Neapolitan,
791 F.2d 489, 504 (7th Cir.) (instruction to jury that “any act” of selling stolen parts in interstate commerce could be predicate act is not plain error),
cert. denied,
479 U.S. 939 , 107 S.Ct. 421 , 93 L.Ed.2d 371 (1986).
6. Motion to Dismiss Count Two because Predicate Acts are Not Related to Objectives of the Enterprise
In
Sedima, S.P.R.L. v. Imrex Company, Inc.,
473 U.S. 479 , 496 n. 14, 105 S.Ct. 3275 , 3285 n. 14, 87 L.Ed.2d 346 (1985), the United States Supreme Court held that proof of two acts of racketeering activity, without more, does not establish a “pattern” of racketeering under RICO.
Id.
The Court explained that the legislative history supported the view that two isolated acts of racketeering activity do not constitute a pattern; rather, “[t]he infiltration of legitimate business normally requires more than one ‘racketeering activity’ and the threat of continuing activity to be effective. It is this factor of
continuity plus relationship
which combines to produce a
*461
pattern.”
Id.
The Court noted that the Congress, in a later provision of the same bill, provided that “criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.”
Id.
(citing 18 U.S.C. § 3575 (e)).
Here, the indictment alleges that the racketeering acts shared the same purpose, that is, to establish and to sustain the illegal sports and numbers gambling businesses. The primary objective of the group, according to the indictment, “was to obtain money for its members and associates through the operation of two illegal gambling businesses.” Count 1, H (l)(e). This court finds that the alleged racketeering acts furthered the group’s purpose by either (1) eliminating competing gambling businesses; (2) murdering those presenting a threat to the gambling businesses by becoming informants to law enforcement; and (3) collecting gambling debts to obtain money for the group’s members.
Racketeering patterns may consist of diversified activities.
See, e.g., United States v. Turkette,
452 U.S. 576, 588 , 101 S.Ct. 2524, 2531 , 69 L.Ed.2d 246 (1981) (arson, mail fraud, and bribery used for purpose of illegally trafficking in narcotics);
United States v. Persico,
832 F.2d 705, 708 (2d Cir.1987) (extortion, bribery, loansharking, and drug trafficking),
cert. denied,
486 U.S. 1022 , 108 S.Ct. 1995 , 100 L.Ed.2d 227 (1988);
United States v. Riccobene,
709 F.2d 214, 229 (3d Cir.) (loansharking, mail fraud, and gambling),
cert. denied,
464 U.S. 849 , 104 S.Ct. 157 , 78 L.Ed.2d 145 (1983). The court finds that the diverse racketeering acts alleged in the indictment nonetheless have a sufficiently related purpose to satisfy the relationship test of
Sedima.
473 U.S. at 496 n. 14, 105 S.Ct. at 3285 n. 14.
To determine whether the continuity requirement is met, this court must consider “the number of unlawful acts, the length of time over which the acts were committed, the similarity of the acts, the number of the victims, the number of the perpetrators, and the character of the unlawful activity.”
United States v. Echeverri,
854 F.2d 638, 649 (3d Cir.1988) (citing
Barticheck v. Fidelity Union Bank,
832 F.2d 36 , 40 (3d Cir.1987)). “[I]f the facts of a particular case show ‘criminal activity that, because of its organization, duration, and objectives poses, or during its existence posed, a threat of a series of injuries over a significant period of time,’ that activity has the kind of continuity contemplated by the pattern requirement.”
Id.
(quoting
Marshall-Silver Construction Co. v. Mendel,
835 F.2d 68 , 66-67 (3d Cir.1987),
vacated and remanded in light of H.J., Inc.,
— U.S.-, 109 S.Ct. 3233 , 106 L.Ed.2d 582 (1989)).
The racketeering acts, according to the indictment, span seventeen years; the alleged sports and numbers gambling businesses began in 1973 and 1974 respectively and continued at the time of the indictment. As such, the activity presented a threat of injury over a significant period of time. The racketeering acts were connected by a common purpose, that is, to establish and to sustain these gambling businesses. The similarity of the alleged extortionate collections of credit from Howard Clarke in 1982, Anthony Stumpo in 1983, and Robert Lipa-ni in both 1977 and 1983 demonstrates the continuing and repetitious nature of the racketeering activities.
The indictment alleges ten racketeering acts; thus, the number of unlawful acts is not insignificant. Additionally, the number of the victims, including Clarke, Stumpo, Lipani, Arthur Belli, Max Belli, and Vincent Mistretta show the widespread effect of the racketeering acts. This court concludes that the racketeering acts alleged in the indictment satisfy the
Sedima
“continuity plus relationship” test; thus, this court will deny defendants’ motion to dismiss Count 2 of the indictment.
7. Motion to Dismiss Indictment for Violating the Statute of Limitations
In
United States v. Persico,
832 F.2d 705, 714 (2d Cir.1987),
cert. denied,
486 U.S. 1022 , 108 S.Ct. 1995 , 100 L.Ed.2d
*462
227 (1988), the United States Court of Appeals for the Second Circuit held that a substantive RICO charge is barred by the statute of limitations as to any defendant unless that defendant committed a predicate act within the five year limitations period.
Id.
(convictions under 18 U.S.C. § 1962 (c) reversed).
See also United States v. Salerno,
868 F.2d 524, 534 (2d Cir.) (conviction under 18 U.S.C. § 1962 (c) reversed),
cert. denied,
— U.S.-, 109 S.Ct. 3192 , 105 L.Ed.2d 700 (1989);
United States v. Torrez-Lopez,
851 F.2d 520, 525 (1st Cir.1988) (conviction under 18 U.S.C. § 1962 (c) reversed),
cert. denied,
489 U.S. 1021 , 109 S.Ct. 1144 , 103 L.Ed.2d 204 (1989). Defendant Grecco contends that the substantive RICO charge is barred by the statute of limitations because two of the alleged racketeering acts occurred in 1977, more than thirteen years ago. He argues that, because the racketeering acts are not continuous and are not related, the general rule that RICO is timely charged if at least one predicate racketeering act occurred within five years of the indictment does not apply here. Defendant does not cite any authority for this novel proposition. In any event, the court has already determined that the racketeering acts
were
sufficiently continuous and related to allege a proper pattern of racketeering activity.
See supra
at section (B)(6). Thus, the general rule applies here. The court must examine only whether each moving defendant has been charged with a predicate act within five years of the indictment.
Grecco, Louis Gatto Sr., Joseph Gatto, and Louis Gatto Jr. are each named in Count 4 of the indictment," which alleges that each participated in an illegal sports gambling business that existed in 1973 and continued up to the date of the indictment. Clearly, the indictment alleges that each defendant committed a predicate act within five years of the date of indictment. Defendants offer no basis for asserting the statute of limitations defense; they do not even contend that they withdrew from the conspiracy. The court will, therefore, deny defendants’ motion to dismiss based on the statute of limitations argument. The court will reconsider, upon defendants’ motion, at the close of the government’s evidence if the government fails to present any evidence that an individual participated in the enterprise within the statutory period.
Additionally, 18 U.S.C. § 1961 (5) provides that a pattern of racketeering activity may include an act committed ten years after the commission of a prior act of racketeering.
Id.
Thus, acts occurring much more than five years before date of indictment may properly be charged as predicate acts. Defendants appear to argue that the government should have returned this indictment seven years ago and, therefore, this court should dismiss the indictment because defendants are entitled to repose. RICO’s statute of limitations, however, demonstrates Congress’s intent that a defendant’s entitlement to repose would be disturbed if his or her conduct fell within the RICO statute.
See
18 U.S.C. § 1961 (5). The court finds no statute of limitations violation in the indictment’s reference to acts occurring thirteen years ago.
Defendant Mazzola contends that both the RICO conspiracy charged in Count 1 and the substantive RICO alleged in Count 2 are barred by the statute of limitations as to him because he was incarcerated for a substantial period between 1984 to 1987. He contends that the racketeering acts alleged occurred before July 20, 1984, except for the allegation in Count 4 of the indictment that he unlawfully, willingly, and knowingly participated in the sports gambling business until the date of the indictment. Mazzola contends that a bill of particulars would disclose that the government can not show that he participated in the sports gambling business. The government contends that it will produce evidence that Mazzola continued to supervise the collection of gambling debts while in prison and after he was released.
The court finds that this matter is not appropriate for pretrial determination.
See United States v. Levine,
658 F.2d 113, 121 (3d Cir.1981) (because dates of continuing violations or conspiracies can often be properly evaluated after development of evidence at trial, denial of motion to dismiss for statute of limitations claims not neces
*463
sarily an order formally and completely rejected before trial) (citing
United States v. Stone,
444 F.Supp. 1254, 1256 (E.D.Wis.),
aff'd,
588 F.2d 834 (7th Cir.1978)). The
Levine
court held that an order denying a motion to dismiss on statute of limitations grounds was not immediately appealable.
Id.
at 129 . The court reasoned that, unlike the bar of double jeopardy, the statute of limitations is an affirmative defense that does not preclude trial because it presents only qualified relief for prosecutorial untimeliness.
Id.
at 128 .
Here, Mazzola has presented facts that suggest that he did not commit any act within the five year period before the indictment, invoking the affirmative defense of the statute of limitations. The government contends it will present evidence that Mazzola participated in the sports gambling business during and after his incarceration, bringing him within the five year statute of limitations period. The court, therefore, will reserve judgment until the close of the government’s evidence to determine whether the government has presented any evidence that the statute of limitations does not bar the substantive RICO charge against Mazzola.
Mazzola’s contention that the RICO conspiracy charge is also barred by the statute of limitations is a different matter. In
United States v. Persico,
832 F.2d 705, 713 (2d Cir.1987),
cert. denied,
486 U.S. 1022 , 108 S.Ct. 1995 , 100 L.Ed.2d 227 (1988), the United States Court of Appeals for the Second Circuit held that a RICO conspiracy offense is complete, thus commencing the running of the five year statute of limitations, only when the purposes of the conspiracy have either been accomplished or abandoned.
Id.
The defendant need not commit an act within the five year limitations period; the statute of limitations does not bar an action for RICO conspiracy against that individual if he or she continues as a coconspirator and another conspirator acted within the five year period.
Id.
Where the conspiracy continues into the limitations period, an individual conspirator can commence the running of the statute of limitations as to him or her by affirmatively withdrawing from the conspiracy.
Salerno,
868 F.2d at 534 n. 4 (citing
In Re Corrugated Container Antitrust Litigation,
662 F.2d 875, 886 (D.C.Cir.1981)).
A defendant’s membership in a conspiracy is presumed to continue until he or she withdraws from the conspiracy by affirmative action.
Hyde v. United States,
225 U.S. 347, 369 , 32 S.Ct. 793, 803 , 56 L.Ed. 1114 (1912). Mere cessation of the conspiracy is not sufficient to establish withdrawal.
United States v. De Peri,
778 F.2d 963, 980 (3d Cir.1985),
cert. denied sub nom., Pecic v. United States,
475 U.S. 1110 , 106 S.Ct. 1518 , 89 L.Ed.2d 916 (1986);
United States v. Continental Group, Inc.,
603 F.2d 444, 467 (3d Cir.1979),
cert. denied,
444 U.S. 1032 , 100 S.Ct. 703 , 62 L.Ed.2d 668 (1980). The burden of proving withdrawal rests with the defendant.
United States v. Gillen,
599 F.2d 541, 548 (3d Cir.),
cert. denied,
444 U.S. 866 , 100 S.Ct. 137 , 62 L.Ed.2d 89 (1979). The defendant must show affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach coconspirators.
United States v. Gypsum Co.,
438 U.S. 422, 464-65 , 98 S.Ct. 2864, 2887-88 , 57 L.Ed.2d 854 (1978). This burden is typically met by a full confession to authorities or communication to one’s coconspirators that defen-danfshas abandoned the enterprise and its goals.
United States v. Steele,
685 F.2d 793, 803-04 (3d Cir.),
cert. denied sub nom., Mothon v. United States,
459 U.S. 908 , 103 S.Ct. 213 , 74 L.Ed.2d 170 (1982). Thus, a conspiracy is presumed to continue after defendant’s arrest unless the defendant makes a substantial affirmative showing of withdrawal, abandonment, or defeat of the conspiratorial purpose.
Mazzola contends that he affirmatively withdrew from the conspiracy when he was incarcerated because he could no longer perform his duties as an enforcer. The court, however, finds that Mazzola has failed to show any affirmative action that would suggest he withdrew from the conspiracy; thus, the statute of limitations did not commence as to him when he was incar
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cerated in July 1984. Mazzola’s analogy to
Steele ,
in which defendant presented evidence that he had permanently severed his employment relationship with General Electric Company by resigning his position, is inapposite. In
Steele ,
the Third Circuit held that defendant’s resignation sufficed to notify his coconspirators that he abandoned the enterprise, its goals, and any claim to the conspiracy’s benefits.
Id.
at 808-04 . Mazzola’s involuntary incarceration is not analogous to the
Steele
defendant’s voluntary withdrawal from the conspiracy. The involuntariness of his incarceration precludes clear notice to his cocon-spirators that he abandoned the conspiracy; rather, his coconspirators could presume that the involuntary withdrawal was merely a short hiatus, rather than a repudiation of the conspiracy. That the effect of Maz-zola’s incarceration and the
Steele
defendant’s resignation from his employment are somehow analogous is not material. Maz-zola’s conduct failed to give notice to his coconspirators that he had unequivocally abandoned the conspiracy.
The same analysis applies to Mazzola’s contention that his incarceration was a “forced retirement” from the group that caused a severance of all ties to the conspiracy. Inasmuch as Mazzola has failed to show that he withdrew from the conspiracy, thereby commencing the running of the statute of limitations as to him, the court may consider the acts of his cocon-spirators in determining whether the statute of limitations bars the conspiracy charge. The court will deny Mazzola’s motion to dismiss Count 1, the RICO conspiracy charge, against him as barred by the statute of limitations.
C.
Motions In Limine to Bar Introduction of Certain Evidence
1. Admissibility of Coconspirators’ Statements
Defendant Grecco moves
in li-mine
to bar the admissibility of alleged coconspirators’ statements under Rule 801(d)(2)(E) of the Federal Rules of Evidence. He contends that the government can not meet its burden to show existence of a conspiracy or that statements were made in furtherance of a conspiracy. Each Gatto defendant has joined in Grecco’s motion.
In a conspiracy trial, the government may offer the statements of the defendant’s alleged coconspirators as evidence in its case-in-chief. Generally, a witness may not testify about statements made by another because such statements are hearsay and are, therefore, inadmissible as evidence. Federal Rule of Evidence 801(d)(2)(E) provides that a statement is not hearsay if the statement is made by a coconspirator of the person against whom the statement is offered and the statement is made during the course and in furtherance of the conspiracy.
Id.
Before permitting the jury to consider a statement over defendants’ objection, the court must find that the government has presented evidence that there was a conspiracy involving the declarant and the defendant and the statement was made during the course and in furtherance of the conspiracy.
Bourjaily v. United States,
483 U.S. 171, 175 , 107 S.Ct. 2775, 2778 , 97 L.Ed.2d 144 (1987). The existence of a conspiracy and the defendant’s involvement in it are preliminary questions of fact that, under Federal Rule of Evidence 104, must be determined by the court before such evidence can be admitted. The government must prove these preliminary questions of fact by a preponderance of the evidence.
Id.
at 176 , 107 S.Ct. at 2779 . This court may consider both the alleged co-conspirator’s statements and proof
aliunde,
that is, independent evidence of the conspiracy, in making its preliminary determination that a conspiracy existed.
Id.
at 181 , 107 S.Ct. at 2781 .
Given the practicalities of the presentation of proofs in a conspiracy trial, this court has previously permitted the testimony about such statements here over a defendant’s continuing objection to their admissibility, subject to this court’s determination that the statements are admissible because they are not hearsay under Federal Rule of Evidence 801(d)(2)(E). Notably, the Supreme Court did not express an opin
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ion of the proper order of proof that trial courts should follow in concluding that the preponderance standard has been satisfied in an on-going trial.
Bourjaily v. United States,
483 U.S. at 176 n. 1, 107 S.Ct. at 2779 n. 1. The Court of Appeals for the Sixth Circuit, however, has held that the court may make this determination at the close of the government’s case-in-chief.
See United States v. Vinson,
606 F.2d 149, 153 (6th Cir.1979),
cert. denied,
444 U.S. 1074 , 100 S.Ct. 1020 , 62 L.Ed.2d 756 (1980). This court has often followed this same procedure.
See, e.g., United States v. Palmeri,
Crim. No. 78-297 (D.N.J. Mar. 20, 1979).
The court, therefore, will deny defendants’ motion to exclude the statements of coconspirators, but will consider whether the statements are admissible at the close of the government’s evidence in each trial.
2. Motion to Suppress Statements of Mylenki and Camiscioli
Defendant Grecco, joined by the Gatto defendants, moves to suppress the post-arrest statements of codefendants Mylenki and Camiscioli. At oral argument, the government represented to the court that it would not seek to introduce these statements in their direct case; therefore, the court will deny the motion as moot.
3. Motion to Suppress Post-Hypnotic Statements of Frank Galimi
Grecco has moved to suppress statements made by Frank Galimi, an alleged eyewitness to the murder of Vincent Mistretta. Galimi’s initial statements to police indicate that he recognized the two assailants but that he could not identify them. At that time, Galimi told police that the victim stated “A1 Wolshonak did it.” Law enforcement officers from the Bergen County Prosecutor’s Office brought Galimi to Dr. Wagle, a psychiatrist, for the purpose of hypnotizing Galimi. Galimi’s father also attended. During the session, Galimi stated that one of the assailants was A1 Wolshonak (a/k/a Alan Grecco) and that he saw Wolshonak get into the passenger side of the vehicle fleeing the scene. Grecco contends that Galimi’s statements are not the product of personal knowledge and are, therefore, inadmissible under Rules 601 and 602 of the Federal Rules of Evidence. He also contends that Galimi’s statements to the hypnotist are inconsistent with earlier statements to police and are unreliable. He argues, therefore, that the statements were made under suggestive circumstances that were likely to result in misidentification, thereby violating his due process right to a fair trial.
The government contends that Galimi’s recollection of the Mistretta murder was not hypnotically refreshed; rather, Galimi merely pretended to be hypnotized to end police pressure on him to cooperate as the sole eyewitness to the Mistretta murder. The government claims that Galimi was reluctant to identify Grecco as the assailant because he feared for his own safety; therefore, he agreed to be hypnotized.
At an evidentiary hearing held on June 13, 1990, the government presented the testimony of Martin Orne, M.D., a professor of psychiatry at the University of Pennsylvania. Dr. Orne testified that he interviewed Galimi, Dr. Wagle, and Officer Ronald McGill and Lieutenant Alan Grieco of the Bergen County Prosecutor’s Office. Evidentiary Hearing of June 13, 1990, Transcript at 42-43. Based on these interviews and the reports and records of the session, Dr. Orne concluded that Galimi was not actually hypnotized during the session.
Id.
at 43. To support this conclusion, Dr. Orne stated that, during the one and a half hour interview, Galimi gave a very accurate description, one not typically known by the general public, of his hypnosis and self-hypnosis while in the Marines.
Id.
at 44. According to Dr. Orne, Galimi described hypnosis in a way that he could not have if he were lying.
Id.
at 45. Dr. Orne stated that this experience would help Galimi determine, in the future, whether or not he was actually hypnotized but would not help Galimi to fake being hypnotized.
Id.
at 50.
Dr. Orne also testified that one factor that determines the degree of “hypnotiza-bility” of an individual, even an individual
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that is susceptible to hypnosis, is his or her willingness to be hypnotized.
Id.
at 22, 27. According to Dr. Orne, Galimi was sufficiently motivated to fake hypnosis and that, under the circumstances of Galimi’s session with Dr. Wagle, his anxiety and fright made it “very, very unlikely” that Galimi would be hypnotized even if he had wanted to be, but Orne could not rule out the possibility that Galimi could be hypnotized in that state.
Id.
at 51.
Additionally, Dr. Orne testified that Gali-mi’s description of the session, that is, “what he did, how he thought about things, what he said and how he thought out what a right answer would be” was precisely the same as that of subjects faking the state of hypnosis in a laboratory.
Id.
at 48-49. For example, Dr. Orne stated that Galimi clearly described his focusing on his father as a way of not focusing on the hypnotist.
Id.
at 48.
Dr. Orne also testified that he considered the statements of Dr. Wagle, who told Orne that it was very unlikely that Galimi was hypnotized during the session.
Id.
at 51. Orne acknowledged that, during their half-hour long discussion, he did not ask Wagle whether he had made any hypnotic suggestion to Galimi during the session.
Id.
at 139. He also considered his interview with Lieutenant Grieco, in which Lieutenant Grieco described that Galimi was not as relaxed as he should have been.
Id.
at 52. The doctor stated, however, that the interview with Galimi was much more compelling evidence that he was not hypnotized than the interviews with other persons present at the time.
Id.
Finally, the doctor testified that the factors that may make a post-hypnotic suggestion ineffective include (1) that the individual is not sufficiently hypnotized, and (2) that the individual does not want to respond to the suggestion, for example, if the individual were frightened or the suggestion threatened his or her self esteem.
Id.
at 54. He testified that post-hypnotic suggestions are most effective immediately after hypnosis and significantly decrease in effectiveness over time,
see id.
at 56, and that the likelihood that hypnosis would have an effect ten years in the future is “just almost impossible” and “approaches nil.”
Id.
at 59, 61.
The government also presented the testimony of Frank Galimi. Galimi confirmed that he was able to hypnotize himself while in the Marines. Evidentiary Hearing of July 30, 1990, Transcript at 28. He stated that he pretended to be hypnotized when he visited Dr. Wagle, but he was too frightened at the time to reveal to anyone that he had seen Wolshonak (a/k/a Grecco) fleeing the murder scene.
Id.
at 61, 88-89. Galimi stated that he did not become hypnotized despite Dr. Wagle’s efforts because he focused on his father.
Id.
at 91. In response to Dr. Wagle’s questions, he stated that he could not be certain but, when he yelled out the window of the apartment on the night Mistretta was killed, he thought he saw Wolshonak (a/k/a Grecco) look up at him over Mistretta’s body.
Id.
at 96, 108. Gali-mi testified that he only partially lied to the hypnotist because he was certain that he saw Wolshonak (a/k/a Grecco).
Id.
at 61, 96. Galimi also stated that Dr. Wagle never suggested that the assailant was named Grecco or Wolshonak during the hour and a half session.
Id.
at 114, 116.
Grecco moves to suppress Galimi’s statements during hypnosis and moves to bar Galimi’s testimony at trial. At least one court has held that neither the government nor the defendant should be permitted to introduce statements made under the influence of hypnosis for the truth of the matter asserted.
Harker v. Maryland,
800 F.2d 437, 441 (4th Cir.1986). The courts of appeals have taken two approaches to analyzing a challenge to the use of post-hypnotic testimony.
3
Most circuits analyze whether post-hypnotic testimony violates
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defendant’s sixth amendment right to confrontation or defendant’s due process right to a fair trial under the fifth amendment.
See Chaussard v. Fulcomer,
816 F.2d 925, 929 (3d Cir.),
cert. denied,
484 U.S. 845 , 108 S.Ct. 139 , 98 L.Ed.2d 96 (1987);
Beck v. Norris,
801 F.2d 242, 244 (6th Cir.1986);
Wicker v. McCotter,
783 F.2d 487 (5th Cir.),
cert. denied,
478 U.S. 1010 , 106 S.Ct. 3310 , 92 L.Ed.2d 723 (1986);
Clay v. Vose,
771 F.2d 1, 4 (1st Cir.1985),
cert. denied,
475 U.S. 1022 , 106 S.Ct. 1212 , 89 L.Ed.2d 324 (1986). In
United States v. Valdez,
722 F.2d 1196, 1201 (5th Cir.1984), however, the United States Court of Appeals for the Fifth Circuit considered the admissibility of the evidence under the Federal Rules of Evidence, holding that when a hypnotized subject identifies for the first time a person whom he or she has reason to know is already under suspicion, the post-hypnotic testimony is inadmissible no matter what procedural safeguards were used to sanitize the hypnotic session.
Id.
at 1203 (probative value of the post-hypnotic identification substantially outweighed by prejudice caused by identification). The two analy-ses, however, are not incompatible. The
Valdez
court
assumed
that use of the posthypnotic testimony did not violate the defendant’s constitutional rights; nonetheless, the court found that the post-hypnotic testimony was improperly admitted under the rules of evidence.
Id.
at 1204 . Thus, the analysis under the rules of evidence is an additional, not alternative, theory for excluding the testimony.
The
Valdez
court recognized that not every witness who had been hypnotized would be incompetent to testify under Rule 601 of the Federal Rule of Evidence.
Id.
at 1204 . A previously hypnotized witness could testify about “those matters which he or she was able to recall
and
[to] relate prior to hypnosis.”
Id.
(quoting
State ex rel. Collins v. Superior Court,
132 Ariz. 180 , 644 P.2d 1266,1295 (1982) (emphasis in original)). The court concluded that, “[i]f a sufficiently reliable method exists for the witness to separate pre-hypnotic memory from post-hypnotic pseudo-memory, such testimony may be admissible.”
Id.
In sum, this court must analyze whether the use of Galimi’s post-hypnotic testimony violates defendant’s right to confront adverse witnesses or his right to a fair trial.
Chaussard v. Fulcomer,
816 F.2d 925, 929 (3d Cir.),
cert. denied,
484 U.S. 845 , 108 S.Ct. 139 , 98 L.Ed.2d 96 (1987). Even if the testimony withstands this scrutiny, the court may still exclude such evidence if it finds that its probative value is substantially outweighed by its prejudicial effect.
United States v. Valdez,
722 F.2d 1196, 1201 (5th Cir.1984).
a Right to Confrontation
The confrontation clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him [or her].” U.S. Const, amend. VI. The United States Supreme Court has determined that, through the fourteenth amendment, the clause applies to state prosecutions.
Pointer v. Texas,
380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965). “[A] primary interest secured by [the confrontation clause] is the right of cross-examination.”
Douglas v. Alabama,
380 U.S. 415, 418 , 85 S.Ct. 1074, 1076 , 13 L.Ed.2d 934 (1965). The dual purposes served by cross-examination are to allow the defendant to impeach a witness’s credibility and to expose a witness’s biases and possible motives for testifying.
Davis v. Alaska,
415 U.S. 308, 316 , 94 S.Ct. 1105, 1110 , 39 L.Ed.2d 347 (1974);
Clay v. Vose,
771 F.2d 1, 4 (1st Cir.1985),
cert. denied,
475 U.S. 1022 , 106 S.Ct. 1212 , 89 L.Ed.2d 324 (1986).
The United States Supreme Court explained the problems of hypnotically refreshed testimony in
Rock v. Arkansas,
483 U.S. 44, 59-60 , 107 S.Ct. 2704, 2713 , 97 L.Ed.2d 37 (1987). The Court noted that, with proper foundation, hypnosis might be useful to improve the accuracy of recall; however, its drawbacks included the potential for suggestibility, confabulation, and hardening of memory.
Id.
A hypnotized person is more likely to be led by suggestions made by the hypnotist or questioner, including messages from the attitude, demeanor, and expectations of the hypnotist, or his or her tone of voice and body lan
*468
guage.
Harker v. Maryland,
800 F.2d 437, 441 (4th Cir.1986) (citing Diamond,
Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness,
68 Calif.L.Rev. 313, 333 (1980)). Subconsciously, the subject may give the response he or she thinks the hypnotist wants to hear.
Rock,
483 U.S. at 60 , 107 S.Ct. at 2713 ;
Harker,
800 F.2d at 441 (citing Diamond, 68 Calif.L.Rev. at 333). Additionally, confabulation may occur when the subject fabricates missing details by injecting parts of real memories that are unrelated to the situation the subject is trying to remember.
Harker,
800 F.2d at 441 . Finally, once a witness makes a statement under hypnosis, his or her confidence in the truth of that statement, whether genuine or invented, is greatly strengthened; a phenomenon known as “memory hardening.”
Rock,
483 U.S. at 60 , 107 S.Ct. at 2714 ;
Harker,
800 F.2d at 441 . The witness would then have such an unshakable subjective conviction in the statement that his or her account on the witness stand would demonstrate absolute confidence even though the statement could be the product of suggestion or confabulation.
Harker,
800 F.2d at 441 .
This unshakable subjective conviction in the truth of one’s own hy

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1757002. Public record. Not legal advice.