# United States v. Basciano

> District Court, E.D. New York · January 12, 2011 · 763 F. Supp. 2d 303

URL: https://www.frixlaw.com/law-library/cases/2470094

## Case

- **Full name:** UNITED STATES of America v. Vincent BASCIANO, Defendant
- **Court:** District Court, E.D. New York
- **Decided:** January 12, 2011
- **Citations:** 763 F. Supp. 2d 303; 2011 U.S. Dist. LEXIS 2901; 2011 WL 114865
- **Precedential status:** Published
- **Opinion:** Opinion by Garaufis
- **Judges:** Nicholas G. Garaufis
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2470094

## How later opinions describe it (automated extraction)

- noting that courts “ ‘should lean in favor of admitting as much information as possible to allow the jury to make an individualized determination of whether the defendant merits the death penalty.’ ” (quoting United States v. Cisneros, 363 F.Supp.2d 827, 833 (E.D.Va. 2005))
- declining to disqualify entire U.S. Attorney’s Office based on allegation that it had “an axe to grind” with defendant over his'solicitation of the murder of an Assistant U.S. Attorney in that Office
- finding Rodriguez to be “well reasoned, . . . persuasive, and [to] appl[y] equally to § 3592(c)(2)”

## Opinion text

*309
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
Defendant Vincent Basciano (“Basciano”) is charged in a superseding indictment with various crimes stemming from his alleged participation in the activities of the Bonanno organized crime family.
(See
S-9 Superseding Indictment (“S-9 Indictment”) (Docket Entry # 464).)
1
The Government seeks the death penalty. On June 26, 2009, the court heard five-and-a-half-hours of oral argument on the dozens of pretrial motions made by the Defendant.
(See
(“Arg. Tr.”) Docket Entry #723.) The motions fall into three broad categories: general pretrial motions, discovery motions, and penalty-phase specific motions.
2
As set forth below, Basciano’s mo
*310
tions are granted in part and denied in part.
I. BACKGROUND
For the purpose of these motions, the current criminal action against Basciano is referred to as
“Basciano II.” United States v. Basciano,
05-CR-060 (NGG) (E.D.N.Y.). Basciano was also a defendant in an earlier criminal action before this court, which is referred to throughout this opinion as
“Basciano I.” United States v. Basciano,
No. 03-CR-929 (NGG) (E.D.N.Y.). The fact that Basciano was previously tried and convicted in
Basciano I
is relevant to a number of the
Basciano II
motions addressed herein.
In the current operative indictment, the S-9 Indictment, Basciano is charged with numerous criminal acts arising from his actions as the “acting boss” of the Bonanno organized crime family.
{See
S-9 Indictment.) The charges in the S-9 Indictment relate to Basciano’s continued involvement in the Bonanno crime family during his incarceration, following his arrest in
Basciano I
on November 19, 2004.
{See
Memorandum & Order of Oct. 14, 2008 (“Double Jeopardy Order”) (Docket Entry # 540) at 6, 2008 WL 4596215 .)
In
Basciano I,
Basciano was twice tried and convicted by jury. The charges in that case stemmed from his participation in the Bonanno organized crime family from 1979 through 2004.
{See
Double Jeopardy Order at 2-3.) On May 9, 2006, a jury found Basciano guilty of a racketeering conspiracy in violation of 18 U.S.C. § 1962 (d), including predicate acts of illegal gambling and the attempted murder of David Nunez.
{See
Jury Verdict,
Basciano I
(Docket Entry # 749).) Under a superseding indictment, Basciano was re-tried on charges for which no verdict had been reached in the first trial. A second jury found him guilty of substantive racketeering, including predicate acts of illegal gambling, conspiracy to distribute marijuana, solicitation to murder Salvatore Vitale and Dominick Martino, and conspiring to murder and murdering of Frank Santoro.
{See Basciano I,
Jury Verdict (Docket Entry # 981).) The jury also found Basciano guilty of three counts of illegal gambling and one count of conspiracy to distribute marijuana.
(Id.)
The various charges in the indictments in
Basciano I
related to Basciano’s “expansive involvement in the livelihood of the Bonanno organization.”
{See
Double Jeopardy Order at 11;
see also id.
at 2-3.) On April 7, 2008, the court entered judgment against Basciano, sentencing him to a term of life imprisonment.
(See Basciano I,
Docket Entry # 1073.) Basciano is designated by the Bureau of Prisons to serve his life sentence in the Administrative Maximum Facility of the Florence Federal Correctional Complex (“Florence Supermax”). (Docket Entry # 889.) The Second Circuit has thus far upheld Basciano’s conviction.
See United States v. Basciano,
384 Fed.Appx. 28 (2d Cir.2010);
(Basciano I,
Docket Entry # 1075,1164).
*311
Here, in
Basciano II,
the indictment was first filed on January 26, 2005. (Indictment (Docket Entry # 1).) Over the course of this case, the indictment has been superseded several times. The current operative indictment, the S-9 Indictment, charges Basciano with four separate crimes. Counts Three and Four of the S-9 Indictment charge Basciano with allegedly conspiring to murder and murdering Randolph Pizzolo in aid of racketeering in violation of 18 U.S.C. § 1959 (a).
(Id.
¶¶ 52-56.) Pizzolo was killed on or about November 30, 2004.
(Id.
¶ 56.) The Government has filed a Notice of Intent to Seek the Death Penalty (“Notice of Intent”) against Basciano, should he be convicted of murdering Pizzolo in aid of racketeering under Count Four.
3
(See
Docket Entries # # 284, 294, 938; S-9 Indictment ¶¶ 73-74.) The Eighth Superseding Indictment (“S-8 Indictment”), which was filed on November 15, 2007, was the first indictment to include the Notice of Special Findings, which sets forth the Statutory Aggravators and Gateway Factors that must be found by the jury at the penalty phase of the capital trial. (Docket Entry # 358.) Count Five charges Basciano with knowingly and intentionally possessing a firearm in relation to the crimes of violence charged in Counts Three and Four, in violation of 18 U.S.C. § 924 (c).
(See
S-9 Indictment ¶ 57.) Finally, Count Nine charges Basciano with conspiring to murder Patrick DeFilippo in aid of racketeering in violation of 18 U.S.C. § 1959 (a)(5).
(See id.
¶¶ 63-64.)
4
Basciano previously moved to dismiss several of the charges against him in this case on double jeopardy grounds, claiming that they “constitute a second prosecution for offenses already tried by the Government” in
Basciano I. (See
Double Jeopardy Order at 1.) On October 14, 2008, the court denied Basciano’s motion, concluding that “double jeopardy does not raise a bar” to the charges in this case.
(Id.)
The court later denied Basciano’s motion to reconsider its decision
(see
Docket Entry #607), and Basciano took an interlocutory appeal to the Second Circuit.
(See
Docket Entry # # 612, 613;
United States v. Basciano,
No. 09-0281-cr (2d Cir.).) Basciano subsequently cited this appeal as a basis for postponing his trial date in this matter, which was scheduled to begin in September 2009.
(See
Order of Apr. 24, 2009 (Docket Entry # 671) at 1, 3.) To avoid “dual jurisdiction” between this court and the Court of Appeals, the court granted Basciano’s continuance request and postponed the trial until “no sooner than 30 days after a decision by the Second Circuit in the pending appeal.” (Order of June 4, 2009 (“June 4 Order”) (Docket Entry # 708) at 1, 3.)
5
The Court of Appeals affirmed this court’s denial of Basciano’s motion to dismiss Counts Three and Nine of the S-9 Indictment (conspiracy to commit murder in aid of racketeering) but reversed this court’s denial of dismissal of
*312
Count One of the S-9 Indictment (charging substantive racketeering), finding it to be barred on double jeopardy grounds.
See United States v. Basciano,
599 F.3d 184 (2d Cir.2010).
II. GENERAL PRETRIAL MOTIONS
The motions addressed in this section cover five challenges made by Basciano: (1) the disqualification of the United States Attorney’s Office for the Eastern District of New York, and various other issues relating to alleged prosecutorial misconduct; (2) issues relating to the inclusion of the “AUSA Andres solicitation” in the S-9 Indictment; (3) Basciano’s request to admit evidence relating to a list of names he wrote (the “List”); (4) a request to suppress conversations and tapes of conversations between Basciano and former Bonanno family crime boss Joseph Massino; and (5) renewed requests relating to the conditions of Basciano’s confinement. The court addresses each issue in turn.
A. Alleged Prosecutorial Misconduct
Several of the issues raised by Basciano are based on what the court previously referred to as “Tree-wheeling theories of sinister prosecutorial motives.”
(See
Double Jeopardy Order at 13-14 n. 4.) The following facts are essential to understanding Basciano’s prosecutorial misconduct arguments.
In
Basciano I,
Assistant United States Attorney Greg Andres (“AUSA Andres”) served as the lead prosecutor. The court takes judicial notice that over the course of
Basciano I
and much of the history of
Basciano II,
AUSA Andres served in senior positions in the United States Attorney’s Office for the Eastern District of New York (the “Office”), including Chief of the Criminal Division. The reason that AUSA Andres is relevant to these motions is that prior to Count One of
Basciano II
being stricken from the Indictment on double jeopardy grounds, Basciano was charged with a racketeering predicate act of solicitation to murder AUSA Andres. (S-9 Indictment ¶ 32.) The alleged solicitation to murder AUSA Andres occurred on or about November 23, 2004, following Defendant’s November 19, 2004 arrest in
Basciano I. (Id.
¶¶20, 22, 32.) Then, in May 2006, the Government alleges, though it did not charge Basciano in any version of the
Basciano II
indictment, that Basciano authored the List in prison which contained my name, the name of AUSA Andres, and the names of three cooperating witnesses. The Government asserts that the List was a hit list, and that Basciano had solicited the murder of those named on the list. Basciano claims that it was a “Santería” list. Basciano’s prosecutorial misconduct arguments rely upon these facts to challenge the impartiality of the Office and the role AUSA Andres played in the
Basciano II
prosecution.
1.
Request to the Disqualify U.S. Attorney’s Office
Basciano moves for the court to disqualify the Office from prosecuting this case.
(See
Def.’s Mem. in Support of Pretrial Motions (“Def. Pretrial Mem.”) (Docket Entry # 631) at 14-18.) Defendant argues that the entire Office is not disinterested and has “an axe to grind” with him because of the “untested allegation of Joseph Massino that Basciano solicited” the murder of AUSA Greg Andres, one of “their own.” (Def. Pretrial Mem. at 14-15.) Basciano argues that every Assistant United States Attorney (“AUSA”) in the Office “is subordinate to Andres and under his influence.” (Def. Pretrial Mem. at 14.) Further, Basciano attempts to show the “untoward interest” of the Office’s prosecutors, “their overly zealous pursuit of the death penalty against” him, by alleging various improprieties. (Def.
*313
Pretrial Mem. at 15-18.) Basciano contends that the “appearance of partiality and lack of disinterestedness on the part of [the Office] require their removal.” (Def. Pretrial Mem. at 18.) The Government opposes this motion and rebuts Basciano’s various claims of misconduct on the part of the Office.
(See
Gov’t’s Mem. in Opp. to Def.’s Pretrial Motions (“Gov. Pretrial Opp.”) (Docket Entry # 668) at 20-38.)
The primary asserted basis for disqualifying the Office is that Basciano was, until the Second Circuit’s double jeopardy decision, charged in this case with a substantive racketeering predicate of soliciting the murder of a member of the Office, AUSA Andres. Basciano’s argument for recusal of the Office is similar to his multiple arguments for my recusal which have been repeatedly rejected by both this court and the Court of Appeals.
6
See United States v. Basciano,
384 Fed.Appx. 28, 32-34 (2d Cir.2010);
In re Basciano,
542 F.3d 950, 956-58 (2d Cir.2008).
The Office has repeatedly represented that AUSA Andres has not participated in
Basciano II.
The disqualification of the entire U.S. Attorney’s Office because AUSA Andres was the target of a crime would compromise the efficient administration of justice.
See Grand Jury Subpoena of Ford v. United States,
756 F.2d 249, 254 (2d Cir.1985) (“[I]f the disqualification of one government attorney could serve as the predicate for the disqualification of the entire United States Attorney’s Office, the administration of justice would be irreparably damaged.”). In fact, the overwhelming weight of authority counsels against disqualification of an entire U.S. Attorney’s Office.
7
“[E]very circuit court that has considered the disqualification of an entire United States Attorney’s office has reversed the disqualification.”
United States v. Bolden,
353 F.3d 870, 879 (10th Cir.2003) (internal citations and quotation omitted);
see also United States v. Hasarafally,
529 F.3d 125, 128 (2d Cir.2008) (“While a private attorney’s conflict of interest may require disqualification of that attorney’s law firm in certain cases, such an approach is not favored when it comes to the office of a United States Attorney, or,
a fortiori,
to the Department of Justice as a whole.”) (internal citations omitted);
Cope v. United States,
272 Fed.Appx. 445 ,
*314
449 (6th Cir.2008) (rejecting ineffective assistance of counsel claim for failure to move to recuse prosecutor’s office after murder threat against prosecutor, explaining that “[disqualifying an entire United States Attorney’s office is almost always reversible error, regardless of the underlying merits of the case”) (quoting
Bolden,
353 F.3d at 876 ). This strongly counsels against disqualification in this case.
An entire U.S. Attorney’s Office should only be disqualified, if ever, when special circumstances demonstrate that the interest of justice could only be advanced by this drastic remedy. Basciano argues that special circumstances exist here, listing instances of purported Government misconduct and suggesting that these instances were motivated by the Office’s belief that Basciano attempted to murder AUSA Andres.
(See
Def. Pretrial Mem. at 15-18; Transcript of Oral Argument on June 26, 2009 (“Arg.Tr.”) at 24-37.) The court does not set out Basciano’s various challenges to the Government’s conduct here, but having reviewed them carefully, the court finds that none of them assert any particular act of bad faith or unethical conduct. They fail to rise to the level of creating the special circumstances required for recusal. Basciano has not shown that the Office possesses anything more than “the appropriate interest that members of society have in bringing a defendant to justice with respect to the crime with which he is charged.”
Wright v. United States,
732 F.2d 1048, 1056 (2d Cir.1984). In this case, the drastic remedy of disqualifying an entire prosecutor’s office is not justified.
8
Accordingly, Basciano’s motion is DENIED.
2.
Motion to Dismiss Indictment or to Compel Production of Grand Jury Minutes
Basciano argues that the grand jury proceedings were tainted by Government misconduct. (Def. Pretrial Mem. at 19-20.) Basciano asserts that because of this alleged Government misconduct it is appropriate for the court to review the minutes of the grand jury proceedings or to dismiss the S-9 Indictment. (Def. Pretrial Mem. at 19-20.)
Basciano alleges three different acts of Government misconduct before the grand jury. First, Basciano contends that because AUSA Andres had an interest in the prosecution, it is
likely
that he must have been involved in pursuing the indictment and presenting it to the grand jury.
(Id.
at 31-33.) Second, Basciano alleges that the grand jury to which AUSA Andres presented
Basciano I
was the same grand jury that indicted Basciano on charges in
Basciano II.
(Def.’s Mem. in Support of Motion to Suppress the “Massino” Tapes and to Dismiss the Indictment (“Def.’s Massino Suppression Motion”) (Docket Entry # 502) at 33-36.) Because this in
*315
dictment included the charge of soliciting the murder of AUSA Andres, Basciano argues that the grand jury, who may have developed a working relationship with AUSA Andres, may have been impermissibly prejudiced against Basciano.
(Id.)
Third, Basciano asserts that the Government Government
may
have “impermissibly” presented evidence of the List to the grand jury, in obtaining at least some of the Superseding Indictments in this case. (Def. Pretrial Mem. at 19-20.) Basciano contends that if the Government presented the List and argued that Basciano intended to have a federal judge and AUSA Andres killed, this would inflame the grand jury and cause prejudice.
(Id.)
In response, the Government contends that Basciano’s motion is based entirely on speculation about what may have occurred before the grand jury. (Gov’t’s Mem. in Opp. to Def.’s Motion to Suppress the “Massino Tapes” and Dismiss the Indictment (“Gov. Massino Suppression Opp.”) (Docket Entry # 516) at 15-19.) It also asserts that it erected a conflict wall between the prosecution teams in
Basciano I
and
Basciano II. (Id.
at 4-5, 16.) Further, the Government argues that it had no obligation to impanel a new grand jury to hear the
Basciano II
indictments, and that no basis has been provided to disclose the minutes of those grand jury proceedings.
(Id.
at 17-19.) Finally, the Government argues that Basciano offers nothing more than speculation that the List was actually shown to the grand jury, or that doing so would have been improper. (Gov. Pretrial Opp. at 33-35.)
The record does not make clear whether, in fact, the same grand jury heard both cases. Even if the Government presented both cases to the same grand jury, this in no way resolves the issue of whether the grand jury minutes should be produced or the indictment should be dismissed.
“It is axiomatic that ‘grand jury proceedings are accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process.’ ”
United States v. Tranquillo,
606 F.Supp.2d 370, 381 (S.D.N.Y.2009) (quoting
United States v. Mechanik,
475 U.S. 66, 75 , 106 S.Ct. 938 , 89 L.Ed.2d 50 (1986)). “Also clear is the principle that ‘an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.’ ”
Id.
(quoting
United States v. Calandra,
414 U.S. 338, 345 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974)). There is “a tradition in the United States,” codified by Federal Rule of Criminal Procedure 6, “that proceedings before a grand jury shall generally remain secret.”
In re Petition of Craig,
131 F.3d 99, 101 (2d Cir.1997). Under that rule, a court may order disclosure of grand jury materials to a criminal defendant “who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.” Fed.R.Crim.P. 6(e)(3)(E)(ii). To make this showing, the defendant “must demonstrate a ‘particularized need’ for the materials.”
United States v. Ordaz-Gallardo,
520 F.Supp.2d 516, 519 (S.D.N.Y.2007) (citing
United States v. Moten,
582 F.2d 654, 662 (2d Cir.1978)). This is a heavy burden, since the “review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct.”
United States v. Torres,
901 F.2d 205, 232 (2d Cir.1990). Furthermore, “as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.”
id.
at 233 (quoting
Bank of Nova Scotia v. United States,
487 U.S. 250, 254 , 108 S.Ct. 2369 , 101 L.Ed.2d 228 (1988)). “[D]ismissal of the indictment is appropriate only if it is established that the violation substantially
*316
influenced the grand jury’s decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations.”
Bank of Nova Scotia,
487 U.S. at 256 , 108 S.Ct. 2369 (internal quotation marks omitted).
Basciano’s allegations of “government misconduct” before the grand jury are insufficient to require dismissal of the S-9 Indictment or disclosure of the grand jury minutes because they are based entirely on speculation rather than fact. As a purported example of government misconduct, Basciano speculates that AUSA Andres
might
also have been involved in supervising the presentation of the Government’s case to the grand jury in
Basciano II.
In lieu of factual support for this allegation, Basciano makes a number of unfounded assumptions and provides a series of conjectural statements about Andres’s possible role in
Basciano II.
(Def.’s Massino Suppression Motion at 30-31.) This conjecture about AUSA Andres’s role in the presentation of
Basciano II
is based almost entirely upon speculation about what it is “natural to assume” given Defendant’s characterization of the workings of the U.S. Attorney’s Office and AUSA Andres’s interest in this prosecution.
(Id.
at 32.)
Basciano’s argument is entirely speculative and thus is insufficient to satisfy the particularized showing required to overcome grand jury secrecy, let alone to require the dismissal of the indictment.
See Ordaz-Gallardo,
520 F.Supp.2d at 519-20 (“Defendants offer little more than speculation that some impropriety may have occurred before the grand jury that would require this case to be dismissed. Such speculation falls well short of the ‘particularized need’ Defendants must show to obtain disclosure of grand jury materials.”). The Government has repeatedly stated that AUSA Andres has not participated in
Basciano II (see, e.g.,
Gov. Massino Suppression Opp. at 15-17, 15 n. 2; Arg. Tr. at 38), and the Defendant has failed to make any showing sufficient for the court to reject the Government’s representation. Accordingly, there are insufficient grounds to dismiss the charges or grant access to grand jury materials.
Basciano also argues that the indictment must be dismissed because the grand jury would have been biased by the introduction of evidence of the solicitation to murder Andres in
Basciano II,
because Andres had presented
Basciano I
to that same grand jury. (Def.’s Massino Suppression Motion at 33-34.) Without citing any authority for the proposition, Basciano argues that the indictment should be dismissed because the “Eastern District prosecutors failed in this obligation when, instead of impaneling a separate grand jury to consider the charges ultimately brought in the '05 case, they presented the evidence relating to the Andres matter ... to the same grand jury that had returned the indictment in the '03 case.” (Def.’s Massino Suppression Motion at 33-36.) The court finds no support for the proposition that dismissal of the indictment is required under the circumstances.
Here the Andres murder solicitation was only one predicate act included in one count of S-9 indictment, which alleges numerous serious crimes. Defendant has failed to establish a reasonable basis from which this court could conclude that, in light of the vast evidence of the Defendant’s criminal activity that must have been considered by the grand jury, that presentation of the evidence of the Andres murder solicitation “substantially influenced the grand jury’s decision to indict, or [that] there is grave doubt that the decision to indict was free from the substantial influence of such violations.”
Bank of Nova Scotia,
487 U.S. at 256 , 108
*317
S.Ct. 2369 (internal quotation marks omitted). Moreover, in light of the fact that the substantive racketeering charge containing the solicitation to murder Andres has been dropped from the indictment,
see Basciano,
599 F.3d 184 , the concerns that prejudice infected the S-9 Indictment is further minimized.
Finally, Basciano’s argument that the possible presentation of the List to the grand jury requires the court to dismiss the S-9 Indictment or inspect the grand jury minutes is similarly unavailing. Basciano speculates that the Government presented evidence of the List to the grand jury, thereby impermissibly prejudicing him. (Def. Pretrial Mem. at 19-20.) For support, Defendant points to the fact that the Government relied upon evidence of the List in seeking a Special Administrative Measures detention order against Basciano, and that the Government “presumably” relied upon it in deciding to seek the death penalty.
(Id.
at 19.) But Basciano does not explain how these other uses of the List lead to his conclusion that “it is reasonable to assume that the prosecutors deemed it important enough to present it to the grand jury that was being asked to return not only the latest superseding indictments ... but also the special findings necessary for a death verdict.”
(Id.
at 19-20.) Just because the Government may have deemed the List relevant in determining the appropriate conditions of confinement for Basciano, or as a factor supporting the decision to pursue the death penalty, it does not necessarily follow that the Government also must have presented the List to the grand jury.
9
Basciano concedes that the List was discovered after the grand jury had already charged him with every count and every predicate he is currently facing under the S-9 Indictment. (Def. Pretrial Reply at 15.) The List, therefore, could not have affected the grand jury’s determination on the substantive charges. The only part of the S-9 indictment that Basciano claims is affected by the possible introduction of the List is the “Notice of Special Findings” included in the S-8 and S-9 Indictments. (Id.)
10
These Findings relate exclusively to
*318
the Pizzolo murder, charged in Count Four, and Basciano’s past conviction of crimes “involving the use or attempted or threatened use of a firearm against another person. (S-9 Indictment ¶¶ 73-74.) Basciano, therefore, offers wholly insufficient support for his assertion that the Government must have presented the List. The court declines to examine the grand jury minutes based upon speculative theories of government overreaching. Ordering the extraordinary remedy of inspecting the minutes of the grand jury proceedings, or the more extreme remedy of dismissing the S-9 Indictment, on the basis of mere speculation about the use of the List is not warranted in this case. Further, even if the List were presented to the grand jury, Defendant could not establish that it “substantially influenced the grand jury’s decision to indict.”
Bank of Nova Scotia,
487 U.S. at 256 , 108 S.Ct. 2369 (internal quotation marks omitted).
For the foregoing reasons, Basciano’s motion is DENIED.
3.
Motion to Strike Charges and Death Penalty Notice
Basciano argues that the S-9 Indictment should be dismissed because the Government improperly manipulated the charges against him in
Basciano I
and
Basciano II.
Specifically, he claims that the Government brought a separate indictment in
Basciano I
charging him with murdering Santoro, even though the Government could have included that charge in
Basciano II,
which was already pending at the time. (Def. Pretrial Mem. at 12.) This charging decision, according to Basciano, enabled the Government to use the conviction for Santoro’s murder in
Basciano I
as a death penalty aggravator in
Basciano II. (Id.)
Basciano refers to this as a “stepladder prosecution.”
(Id.)
Basciano argues that, as part of this manipulation, the Government delayed trial in
Basciano II
until after obtaining a conviction for the Santoro murder in
Basciano I. (Id.)
Basciano has previously offered — and the court has rejected — similarly broad-brushed theories of prosecutorial manipulation.
(See
Double Jeopardy Order at 13-14 n. 4.) As a factual matter, Basciano’s theory of manipulation is not plausible because the timeline of events contradicts it. The Government charged Basciano with Santoro’s murder in
Basciano I
on November 18, 2004; Pizzolo was not killed until November 30, 2004.
(See
Gov. Pretrial Opp. 2^4;
see also Basciano I,
S-2 Superseding Indictment of Nov. 18, 2004
(“Basciano I
S-2 Indictment”) (Docket Entry # 165) ¶¶ 43-45 (including murder of Santoro); S-9 Indictment ¶ 56 (charging Pizzolo murder as occurring on or about November 30, 2004).) Therefore, when the Government charged Basciano with the Santoro murder, it could not have made a decision to delay the prosecution of the death-eligible Pizzolo murder, because Pizzolo was still alive. Accordingly, Basciano is asking the court to conclude that “the government charged the Santoro murder to create an aggravator for a death-eligible murder that had not yet occurred.” (Gov. Pretrial Opp. at 3.) The court rejects Basciano’s illogical argument.
Basciano also argues that once the Government had sufficient evidence on which to charge the Pizzolo murder, it should have prosecuted that murder as part of its case for
Basciano I,
rather than as a separate case under
Basciano II.
Alternatively, he argues that the Government should
*319
have included the Santoro murder as part of
Basciano II.
These arguments are essentially identical to the argument in his double jeopardy challenge — that the two cases are actually one case, and that the Government impermissibly split the charges into two indictments. This court previously rejected that argument, the Court of Appeals has ruled on the double jeopardy challenges to the indictment, and the court will not disturb those rulings here.
See Basciano,
599 F.3d 184 . The court will not invade the Government’s prosecutorial discretion by interfering with its decisions to separately charge conduct that is distinct. The Government was within the bounds of its discretion to try the Santoro murder as part of
Basciano I.
Furthermore, as a legal matter, Basciano fails to cite any authority — and this court can find none for the proposition that a “stepladder” prosecution strategy, even if proven, would provide a basis for dismissal of claims. Defendant attempts to distinguish this case from
United States v. Scarpa,
913 F.2d 993, 1013-14 (2d Cir.1990), where the Court of Appeals for the Second Circuit rejected a challenge to this form of prosecutorial conduct. The
Scar-pa
court rejected the defendants’ arguments under two separate frameworks: double jeopardy and prejudicial preindictment delay. Any possible double jeopardy concerns in the present case have been fully resolved by the Court of Appeals in
Basciano,
599 F.3d 184 , so they need not be addressed here.
In regard to preindictment delay, the court in
Scarpa
held that to “[t]o establish denial of due process based on excessive pre-indictment delay [a defendant] bears the heavy burden ... of showing not only that he was prejudiced by the delay but that it was so unfair as to violate fundamental concepts of fair play and decency, such as would occur if the prosecutor deliberately used the delay to achieve a substantial tactical advantage.” 913 F.2d at 1014 . Prejudice in this context requires a showing of the “sort of deprivation that impairs a defendant’s right to a fair trial. This kind of prejudice is commonly demonstrated by the loss of documentary evidence or the unavailability of a key witness.”
United States v. Cornielle,
171 F.3d 748, 752 (2d Cir.1999). For the tactical advantage to be impermissible it must be “a course intentionally pursued by the government for an improper purpose.”
Id.
Basciano fails to provide any support for his claim that the Government has proceeded with a deliberate strategy of delay, let alone one pursued for an improper purpose. (Def. Pretrial Mem. at 13-14.) Indeed, this court has presided over this case for several years and observes that there has not been any delay on the part of the Government that could give rise to an inference of strategic manipulation. Basciano has been responsible for a significant portion of the delay in bringing this case to trial. Furthermore, Basciano has failed to establish that his right to a fair trial has been prejudiced by the Government’s delay. Even if the Government did intentionally separate the charges for a tactical advantage, the conspiracy to murder and murder of Frank Santoro was found beyond a reasonable doubt by a jury in
Basciano I. (Basciano I,
Jury Verdict (Docket Entry # 981).) It is unclear how use of this prior conviction at the present trial is impermissible or would prejudice Basciano’s right to a fair trial.
Consequently, Basciano’s motion to dismiss the case or, alternatively, to strike the Notice of Intent to Seek the Death Penalty is DENIED.
B. Issues Relating to the Indictment
1.
Motion to Strike Surplus from the Indictment
Basciano argues that the court should strike the allegations against his co-defen
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dants, as well as the introductory language relating to the solicitation to murder AUSA Andres, from the S-9 Indictment. (Def. Pretrial Mem. at 6-8.) Basciano argues that this material is “surplusage” that the court may strike pursuant to Federal Rule of Criminal Procedure 7(d).
See
Fed. R.Crim.P. 7(d) (“Upon the defendant’s motion, the court may strike surplusage from the indictment or information.”). The Government does not oppose Basciano’s request and has stated that it will “return a superseding indictment eliminating the objected to introductory language and the reference to other defendants who have pleaded guilty” or redact the S-9 indictment with Basciano’s consent. (Gov. Pretrial Opp. at 14 n. 2; Arg. Tr. at 60.)
The motion is GRANTED as unopposed.
2.
Request to Sever Count One for Separate Trial
Basciano asks the court to sever Count One from the S-9 Indictment and to try that charge separately from the other counts pending in the Indictment.
(See
Def. Pretrial Mem. at 1-5.) As discussed above, the Court of Appeals ordered Count One, the substantive racketeering charge, dismissed based on double jeopardy grounds.
Basciano,
599 F.3d 184 . Consequently, this motion is DENIED as moot.
C. Evidence of the List
As discussed above, in or around May 2006 Basciano authored a list including the names of five individuals: me, AUSA Andres, and three cooperating witnesses who had testified against Basciano in his 2006 trial.
See, e.g., Basciano v. Lindsay,
530 F.Supp.2d 435, 439 (E.D.N.Y.2008)
(“Basciano Habeas”
). According to the Government, Basciano provided the List to another inmate because he wanted the five individuals murdered.
See, e.g., Id.
11
Basciano contends that the List was actually a Santería list
(see, e.g.,
Arg. Tr. at 97), meaning that Basciano wrote the names down as part of ritual stemming from the religious tradition of Santería.
(See, e.g.,
Andres Disqualification Order at 3) (“Basciano claimed that he was told to write the May 2006 list, place it in his right shoe and stamp five times every day during the trial.”) (internal quotation marks omitted).) Basciano seeks to introduce evidence concerning the List in the guilt phase of the proceedings.
1.
Request to Admit the List at the Guilt Phase
Basciano seeks “an
in limine
ruling to allow [him] to introduce evidence relating to the [List] and the government’s investigation of it in the guilt phase.” (Def. Pretrial Mem. at 60.) Basciano argues that the List should be admitted to show his state of mind
(see, e.g.,
Def. Response at 57) and to show that the Government’s investigation of him was tainted by the Government’s willingness to accept the story of an allegedly unreliable witness, Joseph Massino.
(See
Def. Pretrial Mem.
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at 59-65.) Basciano argues that “[t]he list and surrounding events are relevant as part of the defense to the alleged solicitation to murder Andres, and an attack on the thoroughness and good faith of the government’s investigation ... an investigation that relied on unreliable informants whose unreliability the government either failed to recognize, ignored or consciously avoided.”
(See
Def. Pretrial Mem. at 60.) Defendant argues that discrediting the quality of the Government’s investigation is a valid defense tactic.
(See
Def. Pretrial Mem. at 61-65.) In response, the Government argues that the List is hearsay, that it is not relevant to the charged crimes, and that, even if it were relevant, it would cause jury confusion and would unduly prejudice Basciano.
(See
Gov. Pretrial Opp. at 35-37.) The Government does not plan to introduce the List at the guilt phase.
(See id.)
The court finds that admission of the List at the guilt phase is inappropriate. Basciano asserts that the List is relevant to the formerly charged solicitation to murder AUSA Andres in November 2004, which Government seeks to introduce as an uncharged crime admissible under Federal Rule of Evidence 404(b) and as direct evidence of the charged crimes.
(See
Def. Pretrial Mem. at 60;
see also
S-9 Indictment ¶ 32.; Gov’t’s Motion
In Limine
to Admit Certain Evidence and to Preclude Certain Evidence and Arguments at Trial (“Gov.
In Limine
”) (Docket Entry # 945).) Yet, the List was authored by Basciano in approximately May 2006— nearly eighteen months after the alleged solicitation to murder AUSA Andres.
(See, e.g.,
Andres Disqualification Order at 3.) The government has not charged Basciano with any crime relating to the creation of the List, nor does the government intend to introduce the List at the guilt phase of the trial.
(See
Gov.
In Limine.)
Its creation, therefore, is conduct that is not charged and is not at issue in this case.
Basciano, nonetheless, argues that the List is relevant to his “state of mind” in soliciting the murder of AUSA Andres eighteen months earlier, because it shows that his intent was actually to perform a religious ritual.
(See, e.g.,
Attorney’s Supporting Declaration of Aug. 19, 2009 (“Goltzer Reyes Deck”) (Docket Entry # 770) ¶ 16.) This argument is without merit. Whether Basciano intended to practice a Santería ritual involving five individuals, including Andres, in the middle of 2006 does not tend to prove or disprove anything about his state of mind when he allegedly solicited the murder of AUSA Andres in 2004, in a conversation with another inmate. Nor does evidence of the Government’s investigation techniques in 2006 tend to prove or disprove whether the Government was using proper investigative techniques in 2004. Consequently, the List evidence is not relevant to the crimes at issue in this case.
See
Fed.R.Evid. 401.
In any event, any relevance this evidence has to the alleged AUSA Andres solicitation — whether for state of mind or otherwise — is far outweighed by the significant probability that it could cause confusion of the issues at trial, mislead the jury, and cause undue delay by creating a protracted side trial.
See United States v. Aboumoussallem,
726 F.2d 906, 912 (2d Cir.1984) (“[Rjelevant evidence may be excluded under Rule 403 if its probative value is substantially outweighed by ‘the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay.’ ”) (quoting Fed.R.Evid. 403). Evidence relating to the List could improperly confuse the jury’s consideration of the serious charges of murder, solicitation, and attempt that are actually at issue in this case. More
*322
over, should Basciano attempt to prove that the List is not a “hit list” but, rather, a Santería list and that the Government did not investigate the List in good faith, the proceedings would almost certainly turn into a trial within a trial about the circumstances surrounding the List’s creation and whether Basciano intended to solicit the killing of the individuals on the list or perform a religious ceremony. Accordingly, the court declines to allow the diversion Basciano’s introduction of the List would create.
Basciano’s motion to admit evidence of the List at the guilt phase is DENIED.
2. Request to Grant Immunity to Danny Reyes
Following oral argument, Basciano requested that the court compel the Government to grant immunity to Danny Reyes (“Reyes”) so that he might “provide critical defense testimony to contradict the notion that the [List] was a ‘hit list’ as alleged by the government.” (Goltzer Reyes Decl. ¶ 14;
see also
Def.’s Letter of Sept. 16, 2009 (Docket Entry # 785).) He asserts that Reyes would provide testimony showing that the List was actually a Santería list.
(See, e.g.,
Goltzer Reyes Decl. ¶ 15.) Basciano argues that if Reyes does not testify, Basciano “will be unable to fairly demonstrate that an alleged ‘hit’ list was nothing more than an innocent piece of paper to be utilized in a Santería ritual.” (Def.’s Mem. in Support of His Motion to Compel Immunity for D. Reyes (“Def. Reyes Immunity Motion”) (Docket Entry # 770) at 2.)
On May 5, 2009, the court granted Basciano’s request to depose Reyes.
(See
Order (Docket Entry # 682).) On May 18, 2009, the parties were present for the deposition, but Reyes invoked his Fifth Amendment right against self-incrimination in response to defense counsel’s questioning.
(See
Minute Entry of May 18, 2009 (Docket Entry # 699).) Defense counsel objected to this invocation of the privilege, challenging it as an invalid assertion of the Fifth Amendment.
(See, e.g., id.',
Def.’s Letter of May, 19, 2009 (Docket Entry # 689).) On May 21, 2009, the court held a conference with the parties to discuss the issue of Reyes’s invocation of the Fifth Amendment privilege.
(See
Minute Entry of May 21, 2009 (Docket Entry # 700).) Reyes’s counsel was present.
(See id.)
The court conducted an
in camera, ex parte
hearing with Reyes and his counsel, on May 21, 2009, to determine whether his invocation of the privilege had been valid. The
in camera
hearing was sealed and assigned a miscellaneous docket number.
See In re Reyes,
No. 09-Misc-0280 (NGG) (E.D.N.Y.). The court announced in open court its conclusion that Reyes’s invocation of the Fifth Amendment had been valid, and subsequently filed an Order memorializing its decision.
(See
Order of May 26, 2009 (Docket Entry # 697).) A supplemental memorandum was filed in the sealed case that further elaborated the court’s reasons for its conclusion.
(See id.
at 3.) Basciano’s motion to compel the Government to grant immunity to Reyes followed.
“[T]he fifth amendment does not require that defense witness immunity must be ordered whenever it seems fair to grant it.”
United States v. Bahadar,
954 F.2d 821, 825 (2d Cir.1992) (internal citation and quotation marks omitted). “The government is under no general obligation to grant use immunity to witnesses the defense designates as potentially helpful to its cause but who will invoke the Fifth Amendment if not immunized.”
United States v. Ebbers,
458 F.3d 110, 118 (2d Cir.2006). Moreover, decisions regarding immunity have long been considered “preeminently a function of the Executive
*323
Branch.”
Bahadar,
954 F.2d at 825 (internal citation and quotation marks omitted). Accordingly, a trial court should order a prosecutor to grant a defense witness immunity “only in extraordinary circumstances.”
Blissett v. Lefevre,
924 F.2d 434, 441 (2d Cir.1991).
The Second Circuit has ruled that such extraordinary circumstances exist only when a defendant can show that: “(1) the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment”; and “(2) the witness’ testimony will be material, exculpatory and not cumulative and is not obtainable from any other source.”
Ebbers,
458 F.3d at 118 (quoting
United States v. Burns,
684 F.2d 1066, 1077 (2d Cir.1982)). The Second Circuit, however, has never found a case in which such extraordinary circumstances existed so as to require a court to compel the Government to grant immunity.
See
Gordon Mehler, John Gleeson & David C. James,
Federal Criminal Practice: Second Circuit Handbook,
414 (2010).
As set forth above, the evidence of the List will not be permitted at the guilt phase. Because the List and related evidence is being excluded in the guilt phase, Reyes’s testimony about the List’s creation is not material to any question at issue in the guilt phase. Accordingly, Basciano fails to make the showing required under
Ebbers
to compel the Government to grant immunity.
To the extent Reyes’s testimony could be used at the penalty phase or for another purpose such as showing that “during the time period that Basciano is speaking over a recorded prison phone call with Ms. Kalb regarding his animus towards AUSA Andres, he is engaging in Santería practice to ward off negativity; not solicitation to murder,” (Def.’s Letter of Sept. 16, 2009 (Docket Entry # 785) at 3), his request must also be denied. Even assuming Reyes’s testimony would be relevant, Basciano has not met his burden under the Second Circuit’s test for compelled immunity. He has made no showing that the Government engaged in the “discriminatory use of immunity to gain a tactical advantage” or that the Government has improperly “forced [Reyes] to invoke the Fifth Amendment.”
Ebbers,
458 F.3d at 118 . Instead, it appears simply that Basciano would like Reyes to testify about the List, but that, on advice of counsel, Reyes has declined to do so in fear of self-incrimination. No discriminatory or manipulative actions by the Government are presented, let alone manipulative actions that approach the standard set forth by the Second Circuit. These circumstances do not justify the extraordinary measure of forcing the Government to grant him immunity-
Basciano’s motion to compel the immunity of Danny Reyes at any stage of the trial is DENIED.
D. Massino
“While in prison awaiting trial in
[Basciano I
] and after being found guilty in a prior case before this court, Joseph Massino, the then-head of the Bonanno crime family, agreed to become a government informant and taped conversations in prison that he had with Basciano.”
(Basciano I,
Memorandum
&
Order of Dec. 12, 2005
(“Basciano I
December Order”) (Docket Entry # 389) at 4 (internal citation omitted). Basciano spoke with Massino on multiple occasions between the November 23, 2004 and January 6, 2005. The first two conversations that Massino had with Basciano in prison were not recorded (the “Massino Conversations”). The Massino Conversations “have been identified by Basciano as taking place in the bullpen of
*324
the U.S. Marshal detention facility at the Brooklyn federal courthouse on November 23, 2004, and during a co-defendant meeting on December 3, 2004.”
(Basciano I,
Memorandum
&
Order of Jan. 3, 2006 (Docket Entry #420)
(“Basciano I
January 2006 Order”), at 5 n. 5;
see also
Def.’s Mem. in Support of Motion to Supplement Motion to Suppress (“Def. Suppression Supp. Motion Mem.”) (Docket Entry # 576) at 1.) Later, Basciano and Massino had conversations which were recorded by Massino (the “Massino Tapes”). “Joseph Massino recorded two January 2005 conversations he had with Basciano in the Metropolitan Detention Center, where they both were held awaiting trial in
[Basciano I
].”
Basciano I
January Order 4 n. 2. These recorded conversations occurred on January 3, 2005 and January 7, 2005. (S-9 Indictment) at 21.)
In this case, Basciano moves to suppress the Massino Conversations and the Massino Tapes. He argues that Massino was acting as a government agent and that these statements were obtained in violation of his Fifth and Sixth Amendment rights.
{See
Def. Pretrial Mem. at 8-11.) Basciano presents his arguments in a variety of briefs, and, indeed, some of these arguments were previously made and ruled upon in
Basciano I.
12
,
1.
The Massino Conversations
Under
Massiah v. United States,
377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964), “the Sixth Amendment right to counsel is violated when a private individual, acting as a government agent, ‘deliberately elicits’ incriminating statements from an accused in the absence of his counsel.”
United States v. Miller,
116 F.3d 641, 665 (2d Cir.1997) (quoting
Massiah,
377 U.S. at 206 , 84 S.Ct. 1199 ). “The primary concern of the government informant rule is to avoid secret interrogation by investigatory techniques that are the equivalent of direct police interrogation.”
United States v. Birbal,
113 F.3d 342, 346 (2d Cir.1997) (internal citation and quotation marks omitted). In
Basciano I,
Basciano requested a
Massiah
hearing “to determine whether Joseph Massino’s testimony about unrecorded jailhouse conversations [was] admissible at trial, or whether the admission of such testimony [would] violate[] Basciano’s Sixth Amendment right to counsel.”
(Basciano I
January 3006 Order at 7-8.)
The court found that a
Massiah
hearing was warranted to determine “whether Joseph Massino was a government agent at the time of his unrecorded jailhouse conversations with Basciano.”
Id.
at 10. The conversations “took place less than a month before the Government claims that Massino agreed to record conversations with Basciano, and more than three months after Massino began to talk with the Government.”
(Basciano I
January 2006 Order at 10.) The court held the
Massiah
hearing in
Basciano I
on January 17-18,2006.
(See
Gov’t’s Letter of June 29, 2009 (Docket Entry # 715) (attaching hearing transcript
(“Massiah
Tr.”)).) Following the hearing, the court announced its decision in open court:
As I ruled in my memorandum and order on January 3, 2006, Mr. Basciano
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met the burden to be afforded a
M[a]ssiah
hearing on the issue of whether Mr. Massino’s testimony at trial about two unrecorded conversations between Massino and Basciano would violate Mr. Basciano’s Sixth Amendment right to counsel.
At that time I had before me the evidence that Joseph Massino had worn a government-wire, [and had] recorded a conversation with Basciano a month after the conversations at issue. This was sufficient to raise a suggestion that Massino may have been a government agent at the time of the unrecorded conversations. I also had Mr. Basciano’s affidavit that Mr. Massino had asked him questions and not merely listened during those conversations which were not recorded. There was a suggestion that Basciano and Massino would not have been placed together but for the interference of the government.
Yesterday and today, the court heard the government’s presentation of its position that it had not made any efforts to place Massino and Basciano together; that Massino was not acting as a government agent at the time of the conversations, and that Massino had been instructed not to ask questions.
The government presented the testimony of FBI Special Agent Kimberly McCaffrey; of Massino’s shadow counsel, Edward McDonald; of staff attorney of the Metropolitan Detention Center, Rina Desai; and Deputy U.S. Marshal John Drago.
These witnesses, along with a number of government exhibits, established neutral reasons for the two times that Massino and Basciano were able to talk with one another. They also establish that before the conversations in question, Massino had been told, on or about November 12, 2004, that there was no chance of a cooperation agreement. The only subject still open to negotiation was whether he was willing to plead guilty to the charge or murdering George Sciasca in his death penalty case in which the Attorney General had previously certified the prosecution for a possible sentence of death.
Yesterday, the government sufficiently established that Joseph Massino fit more into the model of an entrepreneurial inmate whose questions do not violate
M[a]ssiah,
as explained by the Second Circuit in
United States v. Birbal,
113 F.3d 342, at 346 .
I have been very clear from the beginning that affidavits were not sufficient for this hearing and that I wanted live testimony. The government thus has been on notice that it may need to present Joseph Massino at the hearing to testify. Nonetheless, within the
Birbal
analysis, it is not important what the entrepreneurial inmate said to the defendant to get a confession. Massino’s testimony therefore was not vital to the court.
Basciano did not offer compelling evidence to dispute the government’s case. In fact, Basciano did not offer any witnesses. Once the government had met its burden, Basciano needed to demonstrate specifically how the government was involved in the conversations, either by showing evidence that Massino was an agent of the government or by showing actions by the government to put two talkative inmates together. Basciano, instead, sought to show that the government did not do enough to prevent Massino from [asking] Basciano about crimes for which Basciano was already indicted and that Massino did in fact ask probing questions about subjects relating to Basciano’s existing indictment.
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This alone is not sufficient to establish a violation of Basciano’s Sixth Amendment right to counsel under
M[a]ssiah v. United States.
Because the government has shown a lack of government agency in the conversations in question and because Mr. Basciano has failed to prove any government agency, the court will admit Mr. Massino’s testimony about the conversations at trial, if such testimony is offered by the government.
Massiah
Tr. 272-74.
In this case, Basciano moves to suppress the statements that the court deemed admissible in
Basciano I. (See
Def. Suppression Supp. Motion Mem. at 1-19.) He argues that the court’s determination in
Basciano I
was erroneous because Massino himself did not testify at the
Massiah
hearing.
(See id.
at 2-3, 15, 17.) He also argues that additional factors support suppression. In particular, he argues that the Government “must have known” in late 2004 that Massino would seek incriminating statements from Basciano; that it “must have known” that he and Massino would be together in prison; and that the Government exploited this situation, thereby rendering Massino a government agent.
(See id.
at 5-6, 16.) Basciano argues, moreover, that the Government’s decision to seek the death penalty for Massino, coupled with its cooperation negotiations with him, intentionally put pressure on Massino to seek incriminating information from Basciano.
(See id.
at 4-5, 11-13.) For these reasons Basciano seeks another
Massiah
hearing to readdress the same issues upon which that the court permitted two days of oral argument and fact finding in January 2006.
(See id.
at 17.)
In response, the Government notes that, in
Basciano I,
the court made a ruling on precisely the issues presented in this motion and argues that there is no basis for reconsideration of its decision.
(See
Massino Opp. at 1-5.) The Government contends that its decision not to seek the death penalty for Massino is not relevant to whether Massino was acting as an agent of the Government, and that the Government did not exploit, nor is there evidence that they did exploit, plea negotiations with Massino in order to maximize his incentive to obtain incriminating statements from Basciano.
(See id.
at 3-5.) Finally, the Government argues that holding another hearing at which Massino would testify would only allow defense counsel to preview Massino’s testimony, which would “run afoul of the Jencks Act.”
(See id.
at 5-6.)
“The Sixth Amendment right to counsel requires that a defendant have counsel present at interrogations by the Government after the defendant is indicted.”
(Basciano I
December Order 15 (citing
Massiah v. United States,
377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964)).) “Once the right attaches, ‘the Sixth Amendment renders inadmissible in the prosecution’s case in chief statements deliberately elicited from a defendant without an express waiver of the right to counsel.’ ”
United States v. Rommy,
506 F.3d 108, 135 (2d Cir.2007) (quoting
Michigan v. Harvey,
494 U.S. 344, 348 , 110 S.Ct. 1176 , 108 L.Ed.2d 293 (1990)). “[Djeliberate elicitation under the Sixth Amendment ‘covers only those statements obtained as a result of an
intentional
effort’ on the part of government officials to secure incriminating statements from the accused.”
United States v. Rommy,
506 F.3d 108, 135 (2d Cir.2007) (quoting
United States v. Stevens,
83 F.3d 60, 64 (2d Cir.1996)).
In considering whether there has been deliberate elicitation, the intentional actions of a government agent are attributable to the government for the purposes of the Sixth Amendment.
United States v. Pannell,
510 F.Supp.2d 185, 189 (E.D.N.Y.
*327
2007). An informant becomes a government agent, however, “only when the informant has been instructed by the police to get information about the particular defendant.”
Id.
(quoting
Birbal,
113 F.3d at 346 ). “The Sixth Amendment rights of a talkative inmate are not violated when a jailmate acts in an entrepreneurial way to seek information of potential value, without having been deputized by the government to question that defendant.”
Birbal,
113 F.3d at 346 . “[T]o treat every inmate who hopes to cut some future deal as a ‘government informant’ is to extend the idea behind
Massiah
far beyond its natural reach, and that we are not willing to do.”
Stevens,
83 F.3d at 64 .
In
Basciano I,
this court ruled that “the government [had] shown a Jack of government agency in the conversations in question.”
(.Massiah
Tr. at 274.) Following a hearing, at which the court took live testimony over the course of two days and considered arguments from Basciano and the Government, the court found, under
Birbal ,
that “Joseph Massino fit more into the model of an entrepreneurial inmate whose questions do not violate
Massiah.” Id.
at 273. The precise issue that was before the court during that hearing is before the court in the instant application. Basciano has offered neither new evidence nor new argument that would compel a different result. All the arguments that Basciano presents in his motion either were made to the court before its ruling in
Basciano I
or were available to Basciano at that time.
Basciano also argues that the Government paid Massino’s shadow counsel, Edward McDonald, and that Massino and Mr. McDonald were, therefore, government agents. (-See Def. Suppression Supp. Motion Mem. at 7, 9-10, 12, 14-15, 17, 18-19.) The Government states that Massino’s counsel was retained by Massino, and, in any case, that defense counsel had the opportunity to explore the circumstances of his representation at the
Massiah
hearing. (-See Massino Opp. at 3-4.) At the
Massiah
hearing in
Basciano I,
defense counsel contended that McDonald was working “in conjunction with the government,” but I explained that “I appointed him to represent Massino, not to represent the government.”
{Massiah
Tr. at 233-34.) The court appointed Mr. McDonald from a list of names provided by the Government.
{See id.
at 149-50; Arg. Tr. at 41-42.) Mr. McDonald’s testimony at the
Massiah
hearing does not support a conclusion that he was acting as a Government agent — rather than simply as Massino’s attorney — nor has Basciano presented any other evidence suggesting that he was.
{See id.
at 141-62, 207-42 (Mr. McDonald’s testimony);
see also id.
at 269-71.)
Further, Basciano argues that the Government took intentional steps to encourage Massino to elicit information from Basciano. Yet, the Government’s responsibility for Massino’s activities when he elicited statements from Basciano in November 2004 was precisely the issue before the court in
Basciano I.
The court held a two-day hearing with testimony from several witnesses, and Basciano had a full opportunity to develop the factual record. The court found that, based on the evidence, the Government had not taken intentional steps to elicit information from Basciano. Having reviewed the transcript and the parties’ arguments, the court rejects Basciano’s arguments for the reasons set forth in its decision in
Basciano I.
Furthermore, even if Massino were acting as ■ a government agent, which the court finds he is not, his testimony for the purposes of
Basciano II
would not be barred by
Massiah
for the reasons set forth below relating to the Massino Tapes.
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Basciano’s motion to suppress the Massino Conversations is DENIED.
2.
The Massino Tapes
Basciano has also moved to suppress the Massino Tapes. The Massino tapes were recorded on January 3, 2005 and January 7, 2005. (S-9 Indictment at 21.) At this time, Basciano was under indictment and had been arrested in
Basciano I,
and the
Basciano I
S-2 Indictment was the operative indictment. Basciano had not yet been indicted in
Basciano II.
The
Basciano II
indictment was filed on January 26, 2005. (Indictment (Docket Entry #1).)
Basciano argues that his taped statements were made about events concerning
Basciano I
and, thus, violate his Sixth Amendment right to counsel in this case. He argues that the rule articulated by the Supreme Court in
Texas v. Cobb,
532 U.S. 162 , 121 S.Ct. 1335 , 149 L.Ed.2d 321 (2001) — that the right to counsel does not attach for offenses that are separate from charged offenses — does not apply to the present case where “the right to counsel had attached to the subject matter of the Massino interrogation by virtue of the nature of the grand jury’s conspiracy charge leveled against Basciano before the interrogation.” (Def. Supp. Pretrial Mem. at 7.) He argues, for example, that the Massino Tapes address matters that pertain equally to both
Basciano I
and
Basciano II,
and because the offenses in
Basciano I
and
Basciano II
are so intertwined, the court should not separate them for the purposes of Sixth Amendment attachment. (Def.’s Massino Suppression Motion at 5-10.) He further argues that the Massino Tapes should be suppressed pursuant to Disciplinary Rule 7-104(A)(l) of the New York Code of Professional Responsibility, which prohibits communications with persons known to be represented.
(See id.
at 15-19.)
In response, the Government argues that Basciano ignores
Cobb’s
holding that the Sixth Amendment does not attach when offenses are separate. (Gov. Massino Suppression Opp. 7-12.) It further argues that Disciplinary Rule 7-104 was not violated because, as the rule contemplates, “a prosecutor is ‘authorized by law’ to employ legitimate investigative techniques in conducting or supervising criminal investigations, and the use of informants to gather evidence against a suspect will frequently fall within the ambit of such authorization.”
(Id.
at 13 (quoting
United States v. Hammad,
858 F.2d 834, 839 (2d Cir.1988)).)
The Sixth Amendment is “ ‘offense specific’ which means that it cannot be invoked once for all future prosecutions.”
United States v. Mills,
412 F.3d 325, 328 (2d Cir.2005). It “does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of indictment or information.”
Id.; see also Rothgery v. Gillespie County,
554 U.S. 191, 198 , 128 S.Ct. 2578 , 171 L.Ed.2d 366 (2008). Accordingly, “incriminating statements pertaining to pending charges are inadmissible at the trial of those charges,” while “[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are ... admissible at a trial of those offenses.”
Maine v. Moulton,
474 U.S. 159 , 180 n. 16, 106 S.Ct. 477 , 88 L.Ed.2d 481 and accompanying text (1985). This rule recognizes that “to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities.”
Id.
at 180 , 106 S.Ct. 477 .
*329
In
Texas v. Cobb,
the Supreme Court “held that the Sixth Amendment right to counsel does not extend to uncharged crimes unless they are the ‘same offense’ as the charged crime.”
United States v. Mills,
412 F.3d 325, 329 (2d Cir.2005). There is “no constitutional difference between the meaning of the term ‘offense’ in the contexts of double jeopardy and of the right to counsel. Accordingly ... when the Sixth Amendment right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the
Blockburger
test.”
Cobb,
532 U.S. at 173 , 121 S.Ct. 1335 . 121. Accordingly, the Sixth Amendment does not apply to incriminating statements obtained by the Government from a defendant relating to charges for which no criminal prosecution has commenced, nor does it apply to statements obtained when charges have been brought, so long as those charges are not for the “same offense.”
See, e.g. United States v. Mir,
525 F.3d 351, 355-56 (4th Cir.2008) (“[T]he conversations whose admission [the defendant] so vigorously challenges here were part of the government’s investigation of a completely different offense for which no charges had yet been filed — and therefore for which no Sixth Amendment right had attached.”). Furthermore, “[t]he Supreme Court in
Cobb
made clear that there is no exception to the offense-specific nature of the Sixth Amendment for uncharged offenses that are ‘factually related’ or ‘inextricably intertwined with’ a charged offense.”
Mir,
525 F.3d at 356 .
It is not relevant to the analysis that the conduct charged in
Basciano I,
for which Basciano was under indictment at the time of the recordings, relates in some way to the charges in
Basciano II.
Furthermore, to accept Basciano’s argument that
Cobb
does not apply to the specific facts of this case because here “the right to counsel had attached to the subject matter of the Massino interrogation by virtue of the nature of the grand jury’s conspiracy charge leveled against Basciano before the interrogation,” (Def. Supp. Pretrial Mem. at 7), would require this court to ignore the unambiguous holding of
Cobb
that the Sixth Amendment right attaches only to conduct that is the “same offense” as the charged conduct, as that term is defined under Double Jeopardy case law.
Mills,
412 F.3d at 329 .
The
Cobb
rule is clear, and it does not permit for the case-specific exception that Basciano seeks here. “The deciding factor as to whether the right to counsel applies is whether an offense has yet been charged, not whether a later offense is somehow related to an earlier charge.”
United States v. Awan,
06-CR-0154 (CPS), 2006 WL 3207858 , at *6 (E.D.N.Y. Nov. 6, 2006). The Court of Appeals’ double jeopardy ruling struck the substantive racketeering count but affirmed this court’s ruling that Counts Three and Nine of the S-9 indictment do not violate double jeopardy.
See Basciano,
599 F.3d 184 . Thus, it has been definitively resolved that none of the charges still pending in
Basciano II
are the “same offense” for which Basciano’s Sixth Amendment rights had attached in
Basciano I
at the time the Massino Tapes were made.
See, Basciano,
599 F.3d 184 . Therefore, Basciano’s Sixth Amendment rights, as they apply to the introduction of statements in
Basciano II,
had not attached in
Basciano II
at the time of the Massino Conversations. Accordingly,
Massiah
and its progeny do not require exclusion of
any
of the contents of the Massino Tapes or the Massino Conversations from
Basciano II.
Basciano’s arguments that the statements are barred by Disciplinary Rule 7-104(A)(l), are similarly unavailing.
*330
Disciplinary Rule 7-104(A)(l) provides that a lawyer representing a client shall not “communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.” While Disciplinary Rule 7-104(A)(l) has now been replaced by Rule 4.2 of the New York Rules of Professional Conduct, since the two rules are identically worded, and much of the case law refers to Disciplinary Rule 7-104(A)(l), the court will refer to the old rule, Disciplinary Rule 7-104(A)(l), here.
Disciplinary Rule 7-104(A)(l) “does apply to criminal prosecutions.”
U.S. v. DeVillio,
983 F.2d 1185, 1192 (2d Cir.1993). However, “[u]nder DR 7-104(A)(1), a prosecutor is ‘authorized by law to employ legitimate investigative techniques in conducting or supervising criminal investigations, and the use of informants to gather evidence against a suspect will frequently fall within the ambit of such authorization.”
Id.
(quoting
Hammad,
858 F.2d at 839 ). “The
Hammad
court based its finding of an ethical violation principally on the use of the bogus subpoena and cautioned ‘restraint in applying the rule to criminal investigations to avoid handcuffing law enforcement officers in their efforts to develop evidence,’ with district courts assumed to exercise their discretion ‘cautiously and with clear cognizance that suppression imposes a barrier between the finder of fact and the discovery of truth.’ ”
United States v. Rahman,
93-CR-181 (MBM), 1994 WL 388918 , at *6 (S.D.N.Y. July 22, 1994) (quoting
Hammad,
858 F.2d at 838, 834 ). Here, Defendant has failed to establish that the Government’s use of recordings were not “legitimate investigative techniques” that were “authorized by law” under Disciplinary Rule 7-104(A)(l). As in
United States v. DeVillio,
983 F.2d 1185, 1192 (2d Cir.1993), there is “no evidence of any violation rising to the level of the one [ ] considered in
Hammad
” and, thus, the extreme remedy of suppression is not appropriate.
Basciano’s motion to suppress the Massino Tapes is DENIED.
3.
Compelled Confession
Finally, Basciano argues that his statements made to Massino in prison— both the Massino Conversations and the Massino Tapes — were compelled by the Government and that their introduction would therefore violate his right to remain silent under the Fifth Amendment.
(See
Def. Pretrial Mem. at 8-11.) He asserts that the Government strategically took advantage of the fact that Massino was the “ruthless boss of the Bonanno crime family” since the Government knew that Basciano would feel compelled to answer Massino’s questions.
(See id.
at 11.) Because his statements were “compelled” by Massino, Basciano argues that they cannot be admitted in this case. In response, the Government points to
Illinois v. Perkins,
496 U.S. 292 , 110 S.Ct. 2394 , 110 L.Ed.2d 243 (1990), in which the Supreme Court rejected the defense theory of “strategic deception” by a government agent. (Gov. Pretrial Opp. at 15-20.)
Under
Perkins ,
[t]he essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate.... Questioning by captors, who appear to control the suspect’s fate, may create mutually reinforcing pressures that the Court has assumed will weaken the suspect’s will, but where a suspect does not know that he is conversing with a gov
*331
ernment agent, these pressures do not exist.
496 U.S. at 296-97 , 110 S.Ct. 2394 . The coercive atmosphere required for a prisoner’s statements to be considered compelled is absent “when an inmate speaks to someone he considers to be a fellow inmate.”
Birbal,
113 F.3d at 346 . Basciano’s reliance on Justice Brennan’s concurrence in
Perkins
in which Brennan found the deceptive investigative practices may violate the Due Process,
see Perkins,
496 U.S. at 300-03 , 110 S.Ct. 2394 (Brennan, J. concurring), is unavailing because Basciano can point to no case that supports a finding that due process prohibits the form of investigative practices used in this case.
Furthermore, despite Basciano’s argument that his confession was coerced because Massino was a ruthless person and the former leader of the Bonanno organized crime family, the facts do not indicate that Basciano, who was found in
Basciano I
to also have held a senior position in the Bonanno crime family and to have similarly acted ruthlessly, spoke to Massino under conditions which were sufficient to “overbear [his] will to resist and bring about confessions not freely self-determined.”
Rogers v. Richmond,
365 U.S. 534, 544 , 81 S.Ct. 735 , 5 L.Ed.2d 760 (1961). Accordingly, the case law forecloses Basciano’s argument that there was the necessary compulsion here.
13
Basciano’s motion to suppress the Massino Tapes and the Massino Conversations on compulsion grounds is DENIED.
E. Pretrial Detention Conditions
Basciano has bombarded
14
the court with arguments as to why the court should order Basciano moved from the Metropolitan Correctional Center (“MCC”) to the Metropolitan Detention Center (“MDC”) and lift the Special Administrative Measures (“SAMS”) order. Defendant’s pretrial detention has already been exhaustively litigated.
See Basciano Habeas,
530 F.Supp.2d 435 ;
Basciano v. Martinez,
316 Fed.Appx. 50 (2d Cir.2009). The Court of Appeals for the Second Circuit found that,
“In light of the extensive evidence that Petitioner violated prison communications restrictions, engaged in criminal activity from jail, and tried to interfere with his own trial, we hold that his conditions of confinement were not intended to punish, but rather were rationally connected to the penological purpose of protecting the public from a detainee facing trial. They continue to be connected to valid penological purposes, now that he has been convicted.”
Basciano v. Martinez,
316 Fed.Appx. at 50-51 . The court further stated that
*332
“[b]ecause Petitioner has now been convicted of a series of crimes and sentenced to life in prison, his conditions of confinement should be reviewed under the standard applied to prisoners serving a sentence.”
Id.
at 50 . As this court has previously noted, in addition to being sentenced to life in prison, the Bureau of Prisons has designated Basciano to serve his life sentence in the Florence Super-max. (Docket Entry #889.) In light of this exhaustive litigation of the issue and of Defendant’s life sentence in the earlier ease, this court believes that Basciano’s recent claims, coming months before trial, are frivolous and this court refuses to entertain relitigation of this issue.
The court has reviewed all of Defendant’s theories and, for the reasons set out above, the court only needs to address Defendant’s argument that being denied contact meetings with his attorneys in the MCC violates his Sixth Amendment right to counsel.
(See
Def. Nov. 29, 2010 Letter.) The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if prison administrators, and not the courts, are to make the difficult judgments concerning institutional operations.”
Turner v. Safley,
482 U.S. 78, 89 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987).
Judge Keenan’s opinion in
United States v. Kassir,
04-CR-356 (JFK), 2008 WL 2695307 (S.D.N.Y. July 8, 2008) is directly on point and this court finds it persuasive here. Kassir, like Basciano, was housed in the Tenth floor, South Wing, of the MCC (“10 South”) under SAMS.
Kassir,
2008 WL 2695307 , at *1. Kassir, like Basciano, argued that his Sixth Amendment rights were violated by being “permitted only non-contact meetings” with his lawyers which “prevent counsel and Mr. Kassir from reviewing particular documents together.”
Id.
at *3. The non-contact rule in the MCC was motivated by the security concerns arising from, at least in part, an incident in 2000 in which “a pretrial MCC detainee against whom a charge of providing material support to al-Qaeda was still pending, stabbed an MCC officer in the eye as part of a conspiracy to take hostages, including defense lawyers visiting clients in the prison.”
Id.
The
Kassir
court found that “[n]one of this burdens the defendant’s Sixth Amendment rights— and to the extent the requirement of ‘non-contact meetings’ imposes any burden on document-sharing between the defendant and his counsel, this requirement is ‘reasonably related’ to the MCC’s legitimate objective of protecting institutional security.”
Id.
(citing
Turner,
482 U.S. at 87, 96-97 , 107 S.Ct. 2254 ).
Basciano argues that
Kassir
is “quite distinguishable from Mr. Basciano’s situation” because Kassir, unlike Basciano, was accused of being a terrorist, and the “MCC terrorist wing was reconfigured because of the Salim incident,” which was an incident involving an alleged terrorist. (Def. Vacatur Motion at 4.) Despite the fact that the no-contact-visit rule was created in response to an incident involving an alleged terrorist, the legitimate security concerns presented by Basciano’s detention, which have been exhaustively litigated, justify the determination to house Basciano under SAMS and in 10 South, regardless of the no-contact rule. In light of the MCC’s security concerns, this court finds the non-contact rule is valid, as applied to Basciano, even if it does make Defendant’s access to counsel more cumbersome, because “it is reasonably related to legitimate penological interests.”
Turner,
482 U.S. at 89 , 107 S.Ct. 2254 . Furthermore, Defendant has three court-appointed attorneys who have billed millions of dollars in legal
*333
expenses in preparing this case over its five-year history. The court cannot conclude that Defendant’s legal representation has been materially impaired by the non-contact visit policy.
Consequently, Defendant’s motions relating to the conditions of his detention are DENIED.
III. DISCOVERY ISSUES
Basciano’s discovery requests are voluminous and poorly organized, making it difficult for the court to determine which issues are actually presented for review. For example, in his pretrial motions Basciano incorporates at least
twenty-five
separate documents previously filed containing discovery-related requests which span the entire life of this five-year-old case. (Def. Pretrial Mem. at 65.) Defendant also claims to have made “more particularized requests” which include “[mjisconduct and investigative reports, visiting records, and recordings of telephone calls of government witnesses while in custody, including specifically, but not limited to” and then listing the names of ten individuals. (Def. Pretrial Mem. at 66.) This request, like many others, is far from specific, and in fact, requests evidence which goes well beyond that which a criminal defendant is entitled to under Federal Rule of Criminal Procedure 16, 18 U.S.C. § 3500 (“§ 3500”), and required by due process.
See Brady v. Maryland,
373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963);
Giglio v. United States,
405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972). The Government does not oppose many of the requests, but responds that it will disclose evidentiary materials at the appropriate time under applicable rules and case law.
A. Evidence Relating to Dominick Cicale
In September 2007, defense counsel “brought to the court’s attention allegations that cooperating witness [ ] Dominick Cicale (“Cicale”) tried to frame Defendant Vincent Basciano in a ‘bogus’ prison murder plot.” (Memorandum & Order of Dec. 19, 2007 (“Cicale Order”) (Docket Entry # 379) at 1, 2007 WL 4555892 .) Specifically, Marco Santomaggio (“Santomaggio”), a Metropolitan Correctional Center prison guard, had informed Basciano’s attorneys that Cicale solicited a prison inmate (“CW-1”) to falsely claim that Basciano had asked Santomaggio to ask CW-1 to kill Cicale on Basciano’s behalf.
(See Basciano I,
Memorandum
&
Order of Mar. 24, 2008 (Docket Entry # 1065)
(“Basciano I
March Order”), at 3, 2008 WL 794945 .) The parties subsequently indicated that three cooperating witnesses in unrelated matters, including CW-1, might have information pertaining to that incident.
(See
Cicale Order 1.)
15
The court notes that, while the Government has not provided Basciano with every piece of information it seeks with regard to the alleged Cicale plot, it appears that the Government has made great efforts to provide Basciano with a substantial amount of information, including the identity of CW-1, that should provide Basciano with ample evidence with which to impeach Cicale. Furthermore, as the court has noted previously, and as the Second Circuit recognized in the appeal from
Basciano I,
“knowledge of the bogus murder plot would not have substantially aided the jury in assessing Cicale’s credibility, given the already plentiful impeach
*334
ment evidence offered against him.”
United States v. Basciano,
384 Fed.Appx. 28, 31 (2d Cir.2010). Now, unlike in
Basciano I,
Basciano has substantial information about the bogus murder plot to use for impeachment. The court, therefore, will not compel the Government to comply with Defendant’s inexhaustible efforts to obtain yet more evidence about one particular incident pertaining to one potential Government witness. The circumstances of this case do not justify the court supervising every one of Basciano’s seemingly limitless discovery requests on issues only collaterally related to his defense.
1.
Request to Disclose Documentary Evidence
Basciano has requested various documents relating to Cicale’s bogus murder plot, including a seven-page statement made by CW-1.
{See
Def. Pretrial Mem. at 66-67, 70-74.) The Government responds that it has already provided much of the material requested by Basciano, and that additional material will be provided as part of its discovery obligations. (Gov. Pretrial Opp. at 90-93.) Since the June 26, 2009 oral argument, it appears that these materials have been turned over. On July 7, 2009, the Government submitted,
ex parte
and under seal, in both redacted and unredacted form, several internal Bureau of Prisons documents relating to Cicale.
{See
Docket Entry # 722.) After reviewing them, the court ordered the Government to transmit the redacted versions of the documents to defense counsel and reserved decision on the undisclosed portions.
{See
Order of August 21, 2009 (Docket Entry # 767).) After that order, the Government determined that the previously undisclosed materials could be turned over to defense counsel, with only certain inmate identification and location information removed. (See Docket Entry # 783.) All of these documents have now been turned over, and the discovery dispute surrounding them is moot. (See Docket Entries # # 771, 784.)
2.
Request for Material Witness Warrants
Basciano has requested that the court issue material witness warrants authorizing the arrest and continued detention pending trial of CW-1, as well as two other potential witnesses, “CW-2” and “CW-3.”
16
Basciano contends, as discussed above, that CW-1 is an individual in the Witness Protection Program who Cicale solicited to claim that Santomaggio approached CW-1, at Basciano’s request, about killing Cicale.
{See
“Stern Aff.” ¶ 4.) Basciano asserts that, although he does not know their identities, CW-2 and CW-3 have knowledge about the alleged fake murder plot.
(Id.
¶ 19.) Basciano intends to call CW-1, CW-2, and CW-3 at trial because he deems their testimony material to undermining Cicale’s
credibility
— ie., to show that Cicale is a liar who would fabricate evidence against Basciano. (Def. Witness Mem. at 3.) Basciano also argues that this testimony will impeach Cicale by showing his bias against Basciano.
(See
Def.’s Letter of May 31, 2009.)
According to Basciano, CW-1 is a foreign national within the Government’s custody. (Stern Aff. ¶ 19.) Defense counsel is concerned that, if he is released, there is a risk that the defense will be unable to find him for trial.
(Id.)
Basciano asserts that the same problems securing CW-l’s attendance might also apply to securing the attendance of CW-2 and CW-3.
(Id.)
*335
Accordingly, Basciano asserts that the court should order their detention pending trial. (Stern Aff. ¶ 19.)
In response, the Government states that it will accept the service of a trial subpoena with respect to CW-1 while he is in the Witness Security Program, and that there is no plan to release CW-1 from custody.
(See
Gov’t’s Letter of Mar. 6, 2009 (“Gov. Witness Opp.”) (Docket Entry # 651) at 1.) With respect to CW-2 and CW-3, the Government argues that Santomaggio, who apparently knows their identities, has chosen on the advice of counsel not to identify them, even though the Government has authorized him to do so.
(See id.
at 2.) It states, therefore, that a determination of how to secure their presence at trial is not ripe because their identities are not certain.
(See id.)
The Government also argues that the issue of Cicale’s statements to another inmate about a murder plot is not “material,” as would be required for a material witness warrant, because it is collateral to the issues at trial and is cumulative of other impeachment evidence.
(See id.
at 2 n. 1.)
Under 18 U.S.C. § 3144 , the court may order the detention of a material witness if (1) “it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding,” and (2) “it is shown that it may become impracticable to secure the presence of the person by subpoena.”
United States v. Awadallah,
349 F.3d 42, 64 (2d Cir.2003). Under the Warrants Clause of the Fourth Amendment, the warrant applicant must establish probable cause for each requirement.
See id.
With respect to CW-1, Basciano has, at a minimum, not made an adequate showing under the second prong of the
Awadallah
test. He speculates that CW-1 may become unavailable in the event that CW-1 is released from government custody. However, the Government has represented that it has no plans to release CW-1 and that a trial subpoena will be adequate to secure his presence at trial. (Gov. Witness Opp. at 1.) Based upon these representations, the court finds that Basciano has not shown probable cause that it would be impracticable to secure CW-l’s presence at trial by subpoena.
See United States v. Ionia Management S.A.,
07-CR-134 (JBA), 2007 WL 2325199 , at *3 (D.Conn. Aug. 9, 2007) (declining to find presence by subpoena “impracticable” based on counsel’s representation of witnesses’ availability). Should the Government’s plans change with respect to CW-1, however, the Government should notify the court immediately so that this issue can be reevaluated if necessary.
With respect to CW-2 and CW-3, defense counsel points out that there is confusion surrounding their respective identities.
(See
Arg. Tr. at 133.) The Government’s explanation at oral argument somewhat clarifies why this is the case: “Mr. Santomaggio identified by number certain individuals he said had personal knowledge about [the] allegation [relating to the Cicale bogus murder plot]. He hasn’t talked to us about that, and in fact we’ve asked his counsel several times whether he would speak to us and he refuses to.”
(Id.; see also
Order of Feb. 15, 2008 (Docket Entry # 423),) The Government further explained that it has been unable to determine whether anyone besides CW-1 was privy to Cicale’s statements, but that it has “surmised” that a person named “Frank S.” might be CW-2. (Arg. Tr. at 128, 133.) This information has been disclosed to defense counsel, and defense counsel has indicated an intention to interview Frank S. about the bogus murder plot.
(Id.
at 128, 131-33.)
The court concludes that Basciano has not shown probable cause that the testimo
*336
ny of CW-2 and CW-3 will be material and that their presence by subpoena is impracticable. The identities of these potential witnesses is in considerable doubt. As a practical matter, without knowing their identities, it is impossible for the court to order a cooperating witness warrant to secure their presence at trial. Further, with the minimal amount of speculative information provided to the court about CW-2 and CW-3, the court cannot assess whether obtaining their presence by subpoena is practicable. Furthermore, even if their identities were known, there has been no showing that their testimony would be material to the case, rather than merely cumulative of CW-l’s or Santomaggio’s testimony or other impeachment evidence. Quite simply, too little is known about CW-2 and CW-3, by no apparent fault of any party, for the court to grant the requested relief. The court does not deem it appropriate at this time to issue a warrant securing their presence at trial.
17
For the foregoing reasons, Basciano’s motion for material witness warrants is DENIED.
B. Other Evidentiary Requests
Basciano makes numerous discovery requests based upon a variety of theories in a series of disorganized paragraphs in his pretrial briefing. For example, he seeks discovery relating to Cicale’s conduct in prison
(see, e.g.,
Def. Pretrial Mem. at 67, 69, 70-71, 74, 80), Massino’s cooperation
(see, e.g., id.
at 66, 70, 76, 77), and the investigation of the List
(see, e.g., id.
at 69, 79-80, 82). He seeks the early disclosure of all evidence under
Giglio, Brady,
and 18 U.S.C. § 3500 , as well as early disclosure of evidence under Federal Rules of Evidence 404(b) and 807.
(See id.
at 91-95, 96-97.) In addition to these requests, Basciano has included a laundry list of nearly seventy areas about which he deems disclosure to be appropriate.
(See id.
at 75-80, 84-91.) It does not appear that he has even attempted to request these documents from the Government before bringing them to the court’s attention.
(See
Gov. Pretrial Opp. at 88.) Needless to say, these scattershot discovery requests are unduly burdensome to the court and do not provide sufficiently clear or focused requests for the court to effective
*337
ly address any valid outstanding issues that may exist.
Since the time of briefing, the Government has made evidentiary disclosures to defense counsel
(see, e.g.,
Arg. Tr. at 5, 21, 32), and has stated its intention to make other disclosures
(see, e.g., id.
at 127, 140.) The parties have reached agreement on other evidentiary requests presented in Basciano’s briefing.
(See, e.g., id.
at 122, 132, 133-35.)
18
In light of these developments, coupled with Basciano’s disorganized and voluminous briefing on discovery issues, it is not entirely clear which disputes, if any, are pending before the court. The Government’s representations that it is aware of and will meet its discovery obligations, along with the fact that the Government has appeared to fully comply with its discovery obligations in good faith over the course of this case, are sufficient to deny Basciano’s motions at this time.
See United States v. Perez,
940 F.Supp. 540, 553 (S.D.N.Y.1996) (“Courts in this Circuit have repeatedly denied pretrial requests for discovery orders pursuant to
Brady
where the government ... has made a good-faith representation to the court and defense counsel that it recognizes and has complied with its disclosure obligations under
Brady.”).
Furthermore, Basciano recently moved for an order compelling discovery of the Transcript of Magistrate Levy’s
ex parte, in camera
hearing relating to Basciano’s habeas motion. (Def.’s Letter of Dec. 28, 2010 (Docket Entry # 1009). To the extent that materials provided to Judge Levy are independently subject to discovery under Federal Rule of Criminal Procedure 16, and required by
Brady
and
Giglio ,
the Government should provide them to Defendant at the appropriate time. However, to the extent that they are not otherwise discoverable, the court will not compel the disclosure of documents and affidavits which were prepared and provided to Magistrate Levy for sole purpose of determining whether Basciano’s conditions of confinement and SAMS order were justified by legitimate security concerns. It was previously found by Magistrate Levy that revealing the details of the ex parte, under seal materials to Basciano was not appropriate in light of legitimate security concerns.
(See
Gov’t’s Letter of Jan. 5, 2011 (Docket Entry # 1013) at 3).) Nothing has changed to justify reconsideration of that determination.
Accordingly, Basciano’s motions to compel disclosure of discovery are DENIED.
IV. PENALTY-PHASE ISSUES
“Under the [Federal Death Penalty Act (“FDPA”) ], once a defendant is found guilty of a capital offense, the jury must determine whether the defendant is eligible for the death penalty.”
United States v. Wilson,
493 F.Supp.2d 364, 385 (E.D.N.Y.2006). “In this eligibility phase, the government must prove the existence of one of the four culpable mental states enumerated in 18 U.S.C. § 3591 (a)(2)(A)-(D), and the existence of at least one statutory aggravating factor set forth in section 3592(c).”
Id.
“In the eligibility phase, these factors must be proven beyond a reasonable doubt.”
Id.
(citing 18 U.S.C. §§ 3591 (a)(2), 3593(c)). “Once the defen
*338
dant is found eligible to receive a sentence of death, the jury must decide whether the death penalty is justified in the particular case by making findings as to the presence of any aggravating or mitigating factors and then weighing those factors against one another.”
Id.
(citing 18 U.S.C. §§ 3592 , 3593(c)-(d)).
19
On May 7, 2007, the Government filed a Notice of Intent to Seek the Death Penalty against Basciano.
(See
Notice of Intent to Seek the Death Penalty (“Notice of Intent”) (Docket Entry # 294).) This Notice of Intent includes two statutory “Gateway Factors” required for death penalty eligibility under 18 U.S.C. § 3591 (a)(2). These are:
•
Gateway Factor 1:
“Intentionally Participating in an Act, Contemplating that a Life Would Be Taken” under § 3591(a)(1)(C);
20
and
•
Gateway Factor 2:
“Intentionally [and Specifically] Engaging in an Act of Violence that Created a Grave Risk of Death” under § 3591(a)(1)(D).
21
(Id.
at 1-2.) The Notice of Intent also includes two “Statutory Aggravating Factors” under 18 U.S.C. § 3592 (c). These are:
•
Statutory Aggravating Factor 1:
“Previous Conviction of Violent Felony Involving Firearm” under § 3592(c)(2);
22
and
•
Statutory Aggravating Factor 2:
“Substantial Planning and Premeditation” under § 3592(c)(9).
23
(Id.
at 2-3.) The Gateway Factors and Statutory Aggravating Factors are also charged as “Notice of Special Findings” in the S-9 Indictment.
(See
S-9 Indictment ¶¶ 73-74.)
As mentioned, in deciding whether to impose the death penalty, the jury must “consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death.” 18 U.S.C. § 3593 (e). In this regard, the statute allows for the jury to “consider whether any other aggravating factors for which notice has been given exists.” 18 U.S.C. § 3592 (c);
see also
18 U.S.C. § 3593 (a). In accordance with
*339
§ 3593(a)(2), the Government has noticed six “Non-Statutory Aggravators.” These are:
•
Non-Statutory Aggravating Factor 1:
“Future Dangerousness of the Defendant,” as evidenced by, at least, one or more of the following: “Membership in an Organized Criminal Enterprise,” “Continuing Pattern of Violence,” “Low Rehabilitative Potential,” “Lack of Remorse,” and “Specific Threats of Violence While in Prison;”
24
•
Norir-Statutory Aggravating Factor 2:
“Murder to Increase Standing within an Organized Criminal Enterprise;”
25
•
Norir-Statutory Aggravating Factor 3:
“Obstruction of Justice;”
26
•
Norir-Statutory Aggravating Factor
J: “Contemporaneous Convictions;”
27
•
Norir-Statutory Aggravating Factor 5:
“Participation in Additional Uncharged Homicides, Attempted Homicides or Other Serious Crimes of Violence;”
28
•
Non-Statutory Aggravating Factor 6:
“Victim Impact Evidence.”
29
(Id.
at 3-6.)
Basciano’s death-penalty motions fall broadly into four categories: (1) a motion to preclude the death penalty on grounds of unconstitutionality; (2) a motion to bifurcate the penalty phase; (3) motions to strike various factors, including the “depraved indifference” Gateway Factor, two Statutory Aggravating Factors, and all the Non-Statutory Aggravating Factors; and (4) motions to require particulars from the Government regarding certain aggravating factors and for detailed victim impact evidence from the Government.
A. Constitutionality of the Death Penalty
Basciano argues on various grounds that the death penalty is unconstitutional and that it cannot be applied in this case. First, Basciano argues that the rareness of the imposition of the death penalty makes its imposition arbitrary and capricious and, therefore, unconstitutional under the Eighth Amendment.
(See
Def.’s Mem. in Support of Basciano’s Motions to Dismiss the Aggravating Factors Noticed by the Gov’t and to Preclude the Gov’t from Seeking the Death Penalty (“Def. Death Penalty Mem.”) (Docket Entry #311) at 30-35.) Second, he argues that there is no
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difference between cases imposing the death penalty and those imposing life in prison, showing that the death penalty is arbitrary and, therefore, unconstitutional under the Eighth Amendment and Fifth Amendment.
(See id.
at 36-13.) Third, he argues that the racial and regional disparities make the federal death penalty unconstitutional and that the Government is impermissibly “balancing out” racial disparities by bringing this death penalty prosecution against a white defendant.
(See id.
at 44-72.) Fourth, he argues that the death penalty statute is unconstitutional under
Ring v. Arizona,
536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), because aggravating factors are not included in an indictment and proven beyond a reasonable doubt.
(See id.
at 73-105.) Finally, Basciano argues that the death penalty is
per se
cruel and unusual punishment and that too many innocent people are executed to allow the death penalty to stand as punishment.
(See id.
at 133-42.)
Although Basciano’s arguments are thoroughly and aptly presented, the court finds them to be without merit. The law is well settled that the death penalty is constitutional; thus, this court will not address Defendant’s arguments at length here.
See United States v. Wilson,
493 F.Supp.2d 364, 383-84 (E.D.N.Y.2006) (“[B]eeause the Second Circuit has squarely rejected the arguments put forth by the Defendant, I am compelled to uphold the constitutionality of the FDPA without further discussion.”). Addressing the constitutionality of the FDPA, courts have repeatedly rejected the arguments presented by Basciano.
See, e.g., United States v. Mitchell,
502 F.3d 931, 982 (9th Cir.2007) (rejecting claim that FDPA is unconstitutional on various grounds relied upon by Basciano);
United States v. Barnes,
532 F.Supp.2d 625, 631 (S.D.N.Y.2008) (rejecting essentially the same arguments advanced by Basciano);
United States v. Williams,
No. 00-CR-1008 (NRB), 2004 WL 2980027 , at *5-*15 (S.D.N.Y. Dec. 22, 2004).
30
In light of the precedent rejecting Basciano’s arguments that the FDPA and the death penalty generally are unconstitutional, his motion to preclude the death penalty on these grounds is DENIED.
B. Bifurcation of the Penalty Phase
Basciano requests that the court bifurcate the penalty proceedings into an “eligibility” phase and a “selection” phase.
(See
Def. Pretrial Mem. at 53-58.) In his view, the jury’s penalty phase deliberations should proceed in two steps: first, a determination of eligibility for the death penalty based upon consideration of whether there is one Gateway Factor and at least one Statutory Aggravating Factor, and, second, a decision to “select” the death penalty in light of all the aggravating and mitigating information.
(See id.
at 55-56.) Basciano argues that bifurcation will prevent any prejudice to the eligibility determination that might result from including information relating to, for example, the Non-Statutory Aggravating Factors when making the eligibility determination.
(See id.
at 54-55.)
31
In
United States v. Fell,
531 F.3d 197, 239 (2d Cir.2008), the Second Circuit en
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dorsed the bifurcation approach as protective of the integrity of the jury’s “death eligibility” determination. The Court of Appeals in that case explained:
While the FDPA speaks of “a separate sentencing hearing” after which the jury makes both the eligibility decision and the selection decision,
see
18 U.S.C. § 3593 (b)-(e), the central point of that phrase is that the sentencing decision should be separated from the guilt phase — not that the sentencing phase must necessarily take place during one uninterrupted hearing.
See generally Blake v. Carbone,
489 F.3d 88, 100 (2d Cir.2007) (noting our duty to “interpret statutes to avoid constitutional infirmities”). Although we would not go so far as to require trifurcation, we encourage district courts ruling on motions to trifurcate to consider carefully the ramifications of presenting victim impact evidence, or any evidence that would otherwise be inadmissible in the guilt phase of a criminal trial, to a jury that has not yet made findings concerning death eligibility.
Id.
at 240 n. 28.
At oral argument, after hearing from the parties, the court ordered that the penalty phase be bifurcated into two parts.
{See
Arg. Tr. at 61-65.) The court now memorializes that decision. In light of the Second Circuit’s guidance in
Fell ,
the court has considered penalty-phase bifurcation and deems it appropriate. Part one of the penalty phase shall consider Basciano’s eligibility for the death penalty, “including a determination of the existence of one of the requisite Gateway Factors and at least one Statutory Aggravating Factor; part two “shall address whether the death penalty should be imposed, including the weighing of aggravating and mitigating factors.”
United States v. Natson,
444 F.Supp.2d 1296, 1309 (M.D.Ga.2006);
see also United States v. Johnson,
362 F.Supp.2d 1043, 1110-11 (N.D.Iowa 2005).
Basciano’s motion on this issue is GRANTED.
C. Strike Requests
Basciano moves to strike the factors that the Government intends to rely upon during the penalty phase. These motions fall into three categories: (1) request to strike the “depraved indifference” Gateway Factor; (2) request to strike the two Statutory Aggravating Factors; and (3) request to strike the Non-Statutory Aggravating Factors.
1.
Request to Strike Gateway Factor
In its Notice of Special Findings, the Government has stated its intention to prove that Basciano (1) participated in an act, contemplating that the life of Randolph Pizzolo would be taken or (2) intentionally and specifically engaged in an act of violence knowing that the act created a grave risk of death to Pizzolo, “such that participation in the act constituted a reckless disregard for human life and Randolph Pizzolo died as a direct result.” (S-9 Indictment ¶ 74(b), (c) (citing 18 U.S.C. § 3591 (a)(2)(C)-(D)).) In order for Basciano to be eligible for the imposition of the death penalty, the jury must find that one of these two Gateway Factors has been established. Basciano has moved to strike the second of these Factors.
Basciano points out that the death eligible count in this case relies on the intentional murder of Pizzolo, under New York law, in aid of racketeering under 18 U.S.C. § 1959 .
{See
Def. Pretrial Mem. at 34;
see also
S-9 Indictment ¶ 56 (citing New York Penal Law § 125.25(1), 20).)
32
He
*342
argues that, under New York law, depraved indifference murder and intentional murder are inconsistent crimes.
(See
Def. Pretrial Mem. at 34.) He further argues that; “[i]f Mr. Basciano is found guilty of [the murder of Pizzolo] and there is a penalty phase, the jury will have necessarily found an intentional mental state. It should not be permitted to turn around and find, inconsistently, that Baseiano’s state of mind was reckless,”
(Id.)
He also appears to argue that the inclusion of duplicative Gateway Factors is unconstitutional.
(Id.
at 34-35.)
In response, the Government argues that New York murder law has no relevance to the charging of multiple mental states as Gateway Factors under the FDPA.
(See
Gov. Pretrial Opp. at 61-65.) It also contends that the Gateway Factors under § 3591(a)(2) are not aggravating factors that are weighed by a jury, but, rather, are part of a gateway determination of death penalty eligibility.
(Id.)
For this eligibility determination, the Government argues, it is permissible to present multiple mental states to the jury.
(Id.)
As an initial matter, the Government is correct that, as courts have held, there is no constitutional violation, or violation of the FDPA, by virtue of the Government’s presentation of multiple Gateway Factors to the jury during the death-penalty eligibility determination.
See, e.g., United States v. Kee,
No. 98-CR-778 (DLC), 2000 WL 863119 , at *11 (S.D.N.Y. June 27, 2000) (“[T]he four enumerated mental states are not four separate aggravating factors, and are not in any sense unfairly duplicative of one another.”). Rather, the four enumerated mental states “simply assure that no one is sentenced to death without the Government having proved a sufficient level of mens rea in connection with the capital offense.”
Id.
As evidenced by the many cases in which multiple Gateway Factors have been found, multiple mental states may be found by the jury and these mental states need not match the mental state found at the guilt phase.
See, e.g., United States v. Wilson,
04-CR-01016 (NGG), Special Jury Verdict Form (Docket Entry # 360) (E.D.N.Y. Jan. 30, 2007) (finding all four mental states to have been proven beyond a reasonable doubt). In this regard, there is no defect with the Government’s Notice of Special Findings.
Of course, while the Government may be permitted to charge intentional murder together with the mental state required under § 3591(a)(2)(D), this does not necessarily resolve the challenge here. In this case, the death-eligible count charges Basciano with “knowingly and intentionally murderfing] Randolph Pizzolo.” (S-9 Indictment ¶ 56.) It is alleged, that this particular murder was carried out while Basciano was incarcerated, at his behest. Although the court does not have before it the evidence the Government will present on this charge, it is clear that the charged murder took place outside of prison at a time when Basciano was in prison. This conduct appears to fit the third Gateway Factor:
intentionally participatfing] in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the partid
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pants in the offense, and the victim died as a direct result of the act.
18 U.S.C. § 3591 (a)(2)(C). But this does not resolve the issue of whether this conduct could also fit the Fourth Gateway Factor:
intentionally and specifically engaging] in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act.
18 U.S.C. § 3591 (a)(2)(D).
This issue is directly addressed in
United States v. Baskerville,
491 F.Supp.2d 516, 522 (D.N.J.2007). In that case, the defendant was tried and convicted on death-eligible charges resulting from a murder that he ordered from prison.
Id.
at 517-18 . For the purposes of death-penalty eligibility — just as in this case—the Government charged the defendant as having “intentionally participated in an act contemplating that the life of a person would be taken” under § 3591(a)(2)(C), and with having “intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person” under § 3591(a)(2)(D).
Following trial, the defendant moved to strike the Gateway Factor under § 3591(a)(2)(D), arguing that “there was no evidence that Defendant himself ‘specifically engaged in an act of violence,’ ” as required by that provision.
Id.
at 519. The district court agreed. In deciding the motion, Judge Pisano began by observing that the Supreme Court’s death penalty jurisprudence requires the court to focus on the actions of the defendant, rather than his co-conspirators, in assessing the propriety of a death sentence.
Id.
The court concluded that this conduct was not sufficient to meet the statutory language in § 3591(a)(2)(D). The court framed the issue as whether “the meaning of the phrase ‘intentionally and specifically engaged in an act of violence’ in subsection (D) ... encompasses the act of ‘ordering a hit.’ ”
Id.
at 521. Based on a reading of the statutory text, and interpreting the meaning of “act of violence” from various sources, including the dictionary, the court concluded that § 3591(a)(2)(D) required a defendant to engage in an act involving the use of physical force which was not satisfied by ordering a killing.
Id.
at 522. The court further concluded that “specifically engaged” required a level of personal involvement in the killing which was not satisfied by ordering a killing.
Id.
Despite the
Baskerville
court’s thorough analysis, this court declines to follow that case here. As the legislative history of the FDPA makes clear,
33
the purpose of these Gateway Factors was to permit the death
*344
penalty when the mental state rises to the level of culpability found in
Tison v. Arizona,
481 U.S. 137 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987), where a defendant did not intentionally or even knowingly participate in the actual killing of the victim, but substantially participated in a felony that resulted in death and possessed the mental state of reckless indifference to human life. The focus of Tison and the FDPA is on the mental state of the defendant, as demonstrated by a substantial participation in actions that resulted in the death, rather than on whether the defendant personally committed the act of violence or was in close physical proximity to the act.
Accordingly, it would be inconsistent with this purpose to hold that a defendant who ordered another to commit acts of violence posing a grave risk of death, which caused the death of another, could not possess the requisite mental state for the death penalty to be permissible. In the case of a defendant who orders another to commit an act of violence, therefore, the words “specifically engage” ensure that the defendant personally was aware of and responsible for the type of conduct committed. Further, it ensures the defendant played a sufficient role in bringing about the specific act of violence so as to be responsible for the act committed, and it ensures the defendant possesses the mental state of reckless disregard as to its consequences. It would be inconsistent with the relevant case law and the legislative history of the FDPA to limit the application § 3591(a)(2)(D) to cases where a defendant personally commits the act of violence or is in close proximity to the act of violence. Accordingly, this court concludes that it is legally possible that a defendant, who was in prison at the time of the killing but ordered the act of violence resulting in death, could “intentionally and specifically engage[ ]” in an act of violence as required by § 3591(a)(2)(D).
This, however, does not end the matter. At oral argument, the Government conceded that “the theory of the case, defense counsel correctly notes, is not a reckless-disregard theory, but rather an intent theory.” (Arg. Tr. at 78.) The Government further conceded that since the Government is not arguing a reckless-disregard theory, there is a “risk of confusion to the jury” by “inserting a notion” of reckless-disregard theory.
(Id.)
Since the Government concedes that a reckless-disregard theory is not consistent with its theory of the case, the risk of confusing the jury outweighs the minimal benefit of allowing the jury to consider this theory. Though the Government is not precluded as a matter of law from pursuing both theories of culpability, given the Government’s concession, the court finds it appropriate to strike the Gateway Factor under § 3591(a)(2)(D). Should the Government’s theory of the case change before the penalty phase, it can apply for reconsideration of this decision in light of that change. Basciano’s motion is GRANTED.
2.
Request to Strike Statutory Aggravators
Basciano asks the court to strike both of the Statutory Aggravating Factors that have been noticed by the Government. As this court has previously observed, “[t]he court’s screening of aggravating factors is essential in directing and limiting the sentencing jury’s discretion to prevent arbitrary and capricious imposition of the death penalty.”
Wilson,
493 F.Supp.2d at 385 . Aggravating factors should be neither unduly vague nor overbroad.
See United States v. Bin Laden,
126 F.Supp.2d 290, 298 (S.D.N.Y.2001). The court in
Bin Laden
found that,
First, the aggravator must not be so vague as to lack some common-sense core meaning that criminal juries are
*345
capable of understanding. Second, the aggravator cannot be overbroad such that a sentencing juror fairly could conclude that the aggravating circumstance applies to every defendant eligible for the death penalty. Third, the aggravator must be sufficiently relevant to the question of who should live and who should die. Fourth, even if relevant, the aggravator may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.
Id.
(internal citation and quotation marks omitted)
Baseiano moves to strike: (1) Statutory Aggravating Factor of Substantial Planning and Premeditation; and (2) each of the prior convictions the Government intends to rely on in support of the Statutory Aggravating Factor of Previous Conviction of Violent Felony Involving Firearm,
a.
Substantial Planning and Premeditation
Baseiano moves to strike the Statutory Aggravating Factor of Substantial Planning and Premeditation under § 3592(c)(9).
{See
S-9 Indictment ¶ 74(e).) He argues that the statutory text requiring a determination of whether the planning was “substantial” is too vague and imprecise to meet constitutional standards of notice, and must therefore be stricken. (Def. Death Penalty Mem. at 120-22.)
Numerous courts have rejected constitutional challenges to the Substantial Planning Factor under § 3592(c)(9).
See, e.g., United States v. Bourgeois,
423 F.3d 501, 511 (5th Cir.2005) (ruling that § 3592(c)(9) adequately narrows the class of defendants eligible for the death penalty and is not unconstitutionally vague);
Williams,
2004 WL 2980027 , at *17 (“Defendants argue that the term ‘substantial’ is unconstitutionally vague. This argument has been rejected by numerous other courts.”);
United States v. Bin Laden,
126 F.Supp.2d 290, 296-97 (S.D.N.Y.2001) (summarily rejecting a challenge to, among others, this Statutory Aggravating Factor, because it had been “subject to thorough analyses and rejection by other courts”) (citing cases). This court joins these other courts and adopts their reasoning. Accordingly, Basciano’s motion to strike the Substantial Planning and Premeditation Factor is DENIED.
b.
Previous Conviction of Violent Felony Involving Firearm
The Government has noticed its intent to rely on the Statutory Aggravating Factor of Previous Conviction of Violent Felony Involving [a] Firearm under 18 U.S.C. § 3592 (c)(2). (S-9 Indictment ¶ 74(d).) In its September 22, 2008 disclosure regarding the Statutory Aggravating Factors, the Government stated its intention to rely upon two of Basciano’s previous convictions in support of this Statutory Factor: convictions on June 19, 1987 (“1987 Conviction”) and April 8, 2008 (“2008 Conviction”).
{See
Gov’t’s Letter of Sept. 22, 2008 (‘Voluntary Disclosure”) (Docket Entry # 528).) As the Government points out, the 2008 Conviction reflects jury verdicts of guilty for the attempted murder of David Nunez and for the murder of Frank Santoro.
(See
Gov. Pretrial Opp. at 46-47.) According to the Government, evidence was presented at the
Baseiano I
trial regarding these murders showing that Baseiano and another individual “shot David Nunez several times and were arrested in possession of their firearms by law enforcement officers as they tried to escape from the scene of the shooting,” and that “Baseiano shotgunned Santoro to death outside Santoro’s home in the Bronx, New York.”
{Id.
at 47.) The Government also points to Basciano’s 1987 Conviction for criminal possession of a firearm in the third degree; the 1987 Con
*346
viction was used as part of the evidence against Basciano with respect to the Nunez attempted murder.
(Id.)
The Government thus contends that these convictions constitute violent felonies involving firearms.
Basciano seeks to preclude the Government’s reliance on both of these convictions. As set forth below, the court rejects Basciano’s arguments. The Government will be permitted to rely on both convictions. In doing so, however, the court observes that a full re-litigation of the underlying convictions is not appropriate.
See United States v. Chong,
98 F.Supp.2d 1110, 1121 (D.Haw.1999) (“[T]he Court concludes that the Government is entitled to introduce information concerning the underlying circumstances of Defendant’s prior convictions. However, the Court cautions both parties that such information should be limited. The Court will not permit either party to relitigate the merits underlying the convictions because of concerns of waste of time, cumulative evidence, and confusion of the issues.”). Instead, it is appropriate for the parties to introduce the “appropriate amount of information” about these convictions for the jury to determine whether the Statutory Aggravator is satisfied and “to provide the necessary context for the jury to perform its weighing function.”
Id.
The court reiterates that Basciano
will not
be permitted to relitigate the validity of the convictions. With this being stated, the court turns to Basciano’s challenges to the two convictions.
i.
The June 19, 1987 Conviction
Basciano argues that the Government should not be entitled to rely on the 1987 Conviction for criminal possession of a firearm in the third degree. Basciano argues that the elements of the weapon possession offense charged do not include “the use, attempted use, or threatened use of a firearm,” and “no admission as to such use, attempted or threatened use was made by the defendant.” (Def. Pretrial Mem. at 23.) He argues that the elements of the crime to which he pleaded guilty included only possession, or aiding and abetting possession, of a firearm, and that the court should not look to the facts underlying the conviction to determine whether it was a violent felony.
(See id.
at 23-25.)
In response, the Government argues that the 1987 Conviction involved the violent use of a firearm.
(See
Gov. Pretrial Opp. at 48-54.) Namely, Basciano attempted to murder David Nunez by shooting him and' was arrested in possession of a firearm fleeing the scene of the crime.
(Id.)
The Government asserts that jury may appropriately look to the underlying facts, rather than merely the statutory elements, to determine this.
(Id.)
The Government contends that looking only to the elements of the conviction is inappropriate based upon the language of § 3592(c)(2), which only requires a prior conviction
involving
the use, attempted use, or threatened use of a firearm.
(Id.
at 49-50.) By contrast, it argues, other statutes define previous convictions by reference to what the
elements
of the offenses of conviction are, and had congress intended to similarly limit 3592(c)(2), it would have done so explicitly.
(Id.)
The Government urges the court to rely on this interpretation to allow consideration of the facts underlying the conviction.
(Id.
at 48-54.)
The Statutory Aggravator under § 3592(c)(2) applies when “the defendant has previously been convicted of a Federal or State offense ... involving the use or attempted or threatened use of a firearm ... against another person.” The issue presented to the court is how to construe the language of § 3592(c)(2) — that an “of
*347
fense ... involv[es] the use or attempted or threatened use of a firearm ... against another person.”
The court begins with the approach taken by the Fourth Circuit in
United States v. Higgs,
353 F.3d 281, 316-17 (4th Cir.2003). In
Higgs ,
the defendant had argued, as Basciano does, that, under § 3592(c)(2), the “court must take a ‘categorical’ approach to determining whether a prior felony conviction involved the use of a firearm,
i.e.,
the court may only look to the fact of conviction and the statutory definition of the crime of conviction to determine whether a firearm was involved, not to the particular facts of the case.”
Id.
at 316. The court focused on the difference between the language of § 3592(c)(2), which uses the phrase “involving the use or attempted or threatened use of a firearm,” and other statutes in which “Congress has specified that a predicate offense have certain elements” that have been interpreted to require a categorical approach.
Id.
at 316. Such language, according to the Fourth Circuit, “authorizes and likely requires the court to look past the elements of the offense to the offense conduct.”
Id.
Furthermore, the court noted that this approach is consistent with “an indivi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2470094. Public record. Not legal advice.