USA Motion in Basciano Case

[TSNYC]

The bill Government’s Motion to Admit Certain Evidence in Limine

PRELIMINARY STATEMENT

The government respectfully submits this memorandum of law in support of its motion in limine to admit certain evidence at trial in this matter, in particular, the government seeks to admit: (A) uncharged crimes that are part of the charged conspiracy; (B) uncharged crimes that are admissible, in the alternative, pursuant to Federal Rule of Evidence 404(b); (C) uncharged crimes that are admissible, in the alternative, as evidence of consciousness of guilt; and (D) coconspirator statements pursuant to Federal Rule of Evidence 801(d)(2)(E), including coconspirator statements captured on consensual recordings. Together with the filing of this motion, the government also has submitted a supplemental motion in limine to admit certain evidence, namely the testimony of a cooperating witness regarding various topics. Due to the contents of the supplemental motion, it has been filed under seal.

For the reasons set forth below, the Court should grant the government’s motion.

I. Factual Background

A. Indictment & Charges

The details of the charges included in the current Superseding Indictment have been detailed in the government’s prior motions. In short, the defendants Vincent Basciano and Patrick DeFilippo are charged in substantive counts charging racketeering conspiracy, illegal gambling, loansharking, murder in-aid-of racketeering, and a firearms violation. The Count One racketeering conspiracy charges the Bonanno organized crime family of La Cosa Nostra (herein the “Bonanno family,” also known as the “Massino family”) as the charged enterprise, and acts of illegal gambling, loansharking, murder, attempted murder, murder conspiracy and solicitation to murder as racketeering acts. Both defendants are alleged to be high-ranking members of the Bonanno family; both are charged with at least one murder and one attempted murder/murder conspiracy. Both defendants are currently charged with the 1985 conspiracy to murder and attempted murder of David Nunez (racketeering act three). DeFilippo is also charged with the 1999 conspiracy to murder, and murder of, Gerlando Sciascia (racketeering act ten and Counts Eight and Nine). Basciano is charged with the 2001 murder of Frank Santoro (racketeering act eleven) and the solicitation to murder John Doe #6 (the brother of a made member of the Genovese organized crime family)(racketeering act twelve).

B. Overview Of The Government’s Evidence Of The Charged Crimes

The defendants Basciano and DeFilippo have been associated with the Bonanno family since the 1970s. Both are inducted members of the Bonanno family. DeFilippo was “made” first, and at times he has served as the Bonanno family captain to whom Basciano reported. During his tenure as a Bonanno family captain, DeFilippo reigned over a “crew” which operated in the Bronx and consisted of, at times, the following Bonanno family soldiers (in addition to Basciano): Anthony Frascone, Emmanuel Guaragna, John Joseph Spirito, Michael Mancuso, Guisseppe Acuri, Salvatore Maiorino and Salvatore Montagna.

The defendant Basciano was also - sometime after 2001 - elevated to the position of captain. After the indictment and arrest of successive Bonanno family administrations - including Bonanno family boss Joseph Massino, Bonanno family underboss Salvatore Vitale, Bonanno family acting boss and acting consigliere Anthony Urso and Bonanno family acting underboss Joseph Cammarano - Basciano assumed the position of acting boss of the Bonanno family in approximately 2004. Today, Basciano serves as the official boss of the Bonanno family. During his tenure as a Bonanno family captain, Basciano’s crew has included at times the following members of the Bonanno family: Anthony Aiello, Dominick Cicale, Anthony Donato, Anthony “Bruno” Indelicate, Perry Criscitelli, Frank Coppa, Jr., Joseph Lino, Joseph Torre, Gino Galestro, Joseph Sabella, Nicholas “PJ” Piscotti and Louis “Louie Cigars” Mele. Cicale served as Basciano’s “acting” captain, i.e, the member of Basciano’s crew who was charged with supervising the crew when Basciano was unavailable.

1. Charged Gambling Offenses

Both defendants are charged with various illegal gambling offenses. Basciano is charged with the operation of illegal policy and illegal video gambling machine businesses, charged in racketeering acts one and two and Count Two, respectively. DeFilippo is charged with operating illegal video gambling machine and illegal sports betting businesses, charged in racketeering acts two and four and Counts Two, Three and Four.

Each of these operations involved members and associates of the Bonanno family. For example, among others, Bonanno family soldier Anthony Donato was involved in Basciano’s illegal policy operation; Bonanno family soldiers Anthony Frascone and John Joseph Spirito, Bonanno family captains Robert Lino and Jerry Asaro, Bonanno family boss Joseph Massino and Bonanno family underboss Salvatore Vitale, among others, were involved in the sports betting operation with DeFilippo. The charged illegal video gambling operation, involved both defendants DeFilippo and Basciano and numerous other members and associates of the Bonanno family including: Bonanno family boss Joseph Massino, Bonanno family underboss Salvatore Vitale, Bonanno family captain Anthony Graziano and Bonanno family soldier Anthony Donato, among others.

[TSNYC]

2. Charged Crimes of Violence

Both defendants are also charged with specific acts of violence, namely murder, murder conspiracy, attempted murder and solicitation to murder. Both DeFilippo and Basciano are charged with the conspiracy to murder and attempted murder of David Nunez (1985)(racketeering act three); Bonanno family associate Anthony Donate was a participant in the Nunez murder conspiracy/attempted murder as was Alfred Bottone, Sr., a close associate of Basciano. Nunez was shot relating to a policy gambling dispute.

DeFilippo is charged with the 1999 conspiracy to murder and murder of Bonanno family captain Gerlando Sciascia (also known as “George from Canada”) (charged in racketeering act ten and Counts Ten and Eleven) and Basciano is charged with the 2001 conspiracy to murder Frank Santoro (charged in racketeering act eleven). With respect to the Sciascia murder, at trial the government will prove that the following members of the Bonanno family were also involved in various aspects of this crime: Bonanno family boss Joseph Massino, Bonanno family underboss Salvatore Vitale, Bonanno family, Bonanno family captain Jerry Asaro and Bonanno family soldiers John Joseph Spirito and Michael Mancuso. Sciascia was murdered, in part, due to his critical comments about Bonanno family captain Anthony Graziano.

The following members of the Bonanno family were involved, together with Basciano, in the conspiracy to murder and murder of Frank Santoro: Bonanno family captain Dominick Cicale and Bonanno family soldiers Anthony Donato and Anthony “Bruno” Indelicato. Prior to the May 1981 murder of his father, Bonanno family captain Alphonse “Sonny Red” Indelicato, who was murdered together with Bonanno family captains Philip “Phil Lucky” Giaccone and Dominick “Big Trin” Trinchera, Anthony Indelicato served as a captain in the Bonanno family. Anthony Indelicato was later assigned to Basciano’s crew sometime after 2001 when Basciano was elevated to the position of captain. After his elevation to Bonanno family acting boss, Basciano’s crew was reassigned to Bonanno family captain Dominick Cicale. Santoro was murdered because he allegedly proposed kidnaping one of Basciano’s sons.

Finally, with respect to the solicitation to kill John Doe #6 (the brother of a made member of the Genovese family), based on a dispute between this individual and Anthony Donato, in which the individual hit Donato, Basciano sought permission to kill the individual from Bonanno family boss Joseph Massino. In hitting Donato, the individual (John Doe #6) violate LCN protocol which prohibits “raising one’s hands” to a member of organized crime. Massino denied Basciano’s request to kill John Doe #6.

3. Charged Loansharking Offenses

Both defendants DeFilippo and Basciano are also charged in various acts relating to loansharking. DeFilippo is charged in racketeering acts and substantive counts charging the extortionate collection of credit/extortionate collection of credit conspiracy. DeFilippo was involved in these crime together with, at least, Bonanno family soldier Emanuel Guaragna. The loansharking counts against Basciano involved debts owed by members of the Bonanno family, namely Bonanno family captain Peter Calabrese, Bonanno family acting captain Generoso Barbieri and Bonanno family soldier John Palazzolo.

[TSNYC]

Overview Of The Government’s Evidence Of The Uncharged Crimes

During the course of their involvement in the Bonanno family, the defendants - as part of the charged criminal enterprise - have engaged in a variety of other crimes, which are part of the charged conspiracy but not charged as specific racketeering acts. That is, the discrete racketeering acts for which the defendants have been specifically charged are only some of the crimes for which they were engaged during their extended association with, and membership in, the Bonanno family. Each of these uncharged crimes specifically involve the participation of other members of the Bonanno family and the affairs of the Bonanno family. Below is a brief overview of the relevant facts pertaining to the government’s evidence of the “uncharged” crimes.1

1. Gambling Offenses

In addition to the gambling offenses for which the defendants are charged - DeFilippo for illegal sports betting and illegal video gambling machines and Basciano for policy gambling and illegal video gambling machines - each defendant was involved in other illegal gambling operations. DeFilippo was involved in an illegal policy operation which included other members of the Bonanno family, including Bonanno family boss Joseph Massino, Bonanno family underboss Salvatore Vitale and Bonanno family soldier Anthony Frascone. Indeed, when DeFilippo was given responsibility to run the charged illegal sports betting business previously operated by Massino, Vitale and others, he (DeFilippo) was also charged with operating the policy business previously controlled by Massino and Vitale. Additionally, DeFilippo, as Basciano’s captain, attended at least one “sitdown” to resolve a problem Basciano had with his policy business with individuals associated with another organized crime family. Previously, in 1970s, DeFilippo was involved in a policy and sports betting operation involving the following members of the Bonanno family: Vito DeFilippo (Patrick DeFilippo’s father), Joseph D’Amico and William Riviello, among others.

Basciano - in addition to his involvement in policy and joker poker gambling businesses - was also involved in an illegal sports betting operation. With respect to his business, Basciano solicited other members of the Bonanno family to use his gambling business (which used an “office” overseas) and further employed other members and associates of the Bonanno family to operate this business, including Bonanno family soldier/acting captain/captain Dominick Cicale.

2. Arsons, Stolen Cars, Narcotics Trafficking, Extortion, Loansharking Request To Draft Fraudulent Document

During the 1990s and beyond, the defendant Basciano was also involved, with other members and associates of the Bonanno family, in the following crimes: the planning of various arsons (only one of which occurred, namely the one previously charged as racketeering act three, the arson at 1420 Crotona Avenue, Bronx, New York), the theft of cars, narcotics trafficking, extortion (of the heating oil industry, various restaurants and vendors at the San Gennaro Feast held in Little Italy, New York), the purchase of fireworks, loansharking and requesting that a fraudulent deed be drafted.2

a. Arsons & The Theft of Cars

Two Bonanno associates and cooperating witnesses (Gaetano Peduto and Salvatore Onofrietti), who reported to Basciano in the early 1990s, were ordered by Basciano (through in part, Alfred Bottone, a close associate of Basciano’s) to commit three arsons, including the arson at 1420 Crotona Avenue, Bronx, New York (the only arson which actually took place). The addresses for all three arsons were given to these associates, although as noted, only the arson on Crotona Avenue actually took place.3

Basciano also ordered these individuals to steal various cars for him, some of which the associates were told would be involved in “hits” (which the witnesses understood to mean murders), others which were sold. Additionally, Basciano was paid “tribute” - typically $10,000 a month - from the stolen car ring operated by these associates. These crimes took place in the early 1990s and generated profits for the Bonanno family.

[TSNYC]

b. Narcotics Trafficking

During the course of his involvement in the Bonanno family (in the late 1990s), Basciano has been involved in narcotics trafficking, in particular, the distribution of marijuana and ecstacy together with Bonanno family soldier Anthony “Bruno” Indelicato and others.4 Bonanno family soldier/acting captain/captain Dominick Cicale was also involved in this operation. As noted, Cicale, at one time a member of Basciano’s crew, was involved with Basciano and Indelicato in the conspiracy to murder and murder of Frank Santoro.5

c. Extortions

During the course of his involvement in the Bonanno family, Basciano has also been involved in various extortions and extortion conspiracies, namely the extortion of vendors at the San Gennaro Feast, restaurants, and a conspiracy to extort the New York City heating oil industry. The extortion relating to the Feast of San Gennaro and the various restaurants occurred recently and the conspiracy to extort the heating oil industry occurred in the early 1990s.

The other extortions also involved members of the Bonanno family and the LCN. In the early 1990s, Basciano conspired with others to establish a heating oil “committee,” which would consist of members of each of the New York based-LCN families, and which would impose on the sale of every gallon of heating oil within New York City a one percent “tax” for the benefits of the participants of the LCN families.

In approximately 2003, until the time of his arrest, Basciano collected the Bonanno family’s share of the illegal profits - deriving from the extortion of lighting and garbage vendors - from the annual Feast of San Gennaro held in the Little Italy section of Manhattan. The Bonanno family, in partnership with the Genovese family, has long controlled the San Gennaro Feast. During his reign as the acting boss of the Bonanno family (and before), Basciano was charged with collecting the Bonanno family’s illegal profits from the San Gennaro Feast, which he later divided with Bonanno family boss Joseph Massino. Bonanno family soldier Perry Criscitelli was also involved in the Feast extortion as was Bonanno family boss Joseph Massino.6

d. Fireworks Purchase

In the early 1990s, the defendant Basciano purchased $10,000 in illegal fireworks from a cooperating witness, who is also a member of the Bonanno family. The following individuals, also associated with the Bonanno family, were also involved in the fireworks transaction: Salvatore Maoirino and Paul Spina.

e. Loansharking

In addition the acts of loansharking charged against the defendant Basciano, he also extortionately collected a debt from an individual named “Jimmy” who owned a Mobil gas station in Long Island. Specifically, Jimmy had incurred a gambling debt from one of Basciano’s sports betting operations and was being threatened by Basciano for nonpayment. Another member of the Bonanno family (who is available to testify about this series of events) attempted to resolve this “problem” in a “sitdown” between this other Bonanno family member as well as Barry Mascetti, Basciano and Larry Weinstein (all of whom as associated with the Bonanno family). As a result of the sitdown, which was held in the Bronx, a payment plan was arranged whereby Jimmy would make monthly payments to another Bonanno family member, who would then deliver the payments to Basciano.

f. Drafting Of A Fraudulent Deed

In approximately 1995, Basciano asked a cooperating witness, who is an attorney, falsely to backdate a real estate deed transfer. The attorney/ cooperating witness refused, creating tension between the parties. Basciano sought to backdate a transfer of real property from Basciano to his wife to a date that preceded the dates on which Basciano incurred large debts to various casinos in Atlantic City. By doing so, Basciano sought to protect the property in the event that the casinos obtained default judgements against him. Basciano later used this attorney/cooperating witness to send messages to Bonanno family boss Joseph Massino during a time when Massino was incarcerated.

[TSNYC]

3. Murders, Murder Conspiracies, Attempted Murder And Related Crimes

The government has also obtained evidence of the involvement of Basciano in other acts involving murder committed in connection with his association with the Bonanno family. A brief overview of these acts are detailed below.

a. Murder of Anthony Colangelo

Anthony Colangelo, also known as “Tony Coles,” was a Bonanno family associate who operated various gambling operations in the Bronx from at least the 1970s until his murder in 1987. Among others, Colangelo operated these policy and illegal video gambling businesses with Basciano and Anthony Donato, Bonanno family associates at the time.7

Soon after his release from prison in 1987, Colangelo was murdered. On May 24, 1987, a missing persons report was filed by one of Colangelo’s family members. On July 2, 1987, Colangelo’s body was recovered (based on a call to the police by a civilian witness who discovered the body), in a wooded area off the Sprainbrook Parkway, in the Town of Greenburgh. Colangelo’s remains were wrapped in black plastic bags, which were tied together with a Venetian blind type cord. At the time Colangelo’s body was badly decomposed. The Westchester Medical Examiner’s determined the cause of Colangelo’s death to be multiple gunshot wounds to the head and neck.

As noted, the defendant Vincent Basciano and Anthony Donato were involved in Colangelo in various illegal gambling operations. Colangelo was in fact involved in the very gambling operations which Basciano is (and Donato was) charged in the instant Superseding Indictment, for which Basciano will be tried (and to which Donato pled guilty).8 During a time period in the 1980s when Colangelo was incarcerated, Basciano, Donato and others, continued to run their joint gambling operations, expanding the business. Basciano also visited Colangelo in prison. During an interview after Colangelo’s death, Basciano acknowledged to investigators from the New York State Police, that he knew Colangelo, that he (Basciano) had expected to be interviewed based on a prior interview by the investigators of Anthony Donato, that he saw Colangelo approximately one week before he went missing and finally that he knew nothing about Colangelo’s business or why anyone would want to kill him.

A law enforcement official is expected to testify, that sometime in approximately 1989 or 1990 in the Blimpies restaurant controlled by Basciano (at a time when the official was not in uniform), he overheard Basciano state, in substance, the following:
We’ll take care of you the way we took care of the old man from Pleasant Avenue. You’ll find your ass in the woods in Greenburgh.


Given the location in which Colangelo’s car was located (close to the area where he had a video store with Basciano and Donato) - in the vicinity of Pleasant Avenue - and the location where his dead body was recovered, Basciano’s “Blimpies” statement was a reference to Colangelo and his murder.

b. Conspiracy to Murder Salvatore Caio

In the early 1990s, Basciano ordered a Bonanno family associate under his charge, Gaetano Peduto (the same associate who was involved in stealing cars and the charged arson), to kill Salvatore Caio because he (Basciano) believed that Caio might become a cooperating witness. For approximately one month, the associate looked for Caio but he was never able to locate him and thus ultimately did not murder him. If called as a witness at trial, Peduto is expected to testify that he was a Bonanno family associate “around” Basciano (and Alfred Bottone) and that he committed various crimes for Basciano.

c. Conspiracy to Murder/Attempted Murder Of Nardino “Lenny” Colotti (1993-1994)

In the 1990s, Basciano gave permission to Bonanno family associate Gaetano Peduto to murder Nardino “Lenny” Colotti. The conspiracy to murder, and attempted murder of Colotti, resulted from a series of disputes between Bonanno family associates Gaetano Peduto and Salvatore Onofrietti and Gambino family associate Frank Fratello. In the course of these disputes, Peduto was himself shot, after which he received permission from Basciano to retaliate and kill Colotti. Colotti was ultimately killed and the underlying dispute was later resolved by at a sitdown.

d. Murder of John Doe (In a Queens Social Club)

Sometime in the early to mid-1990s, the defendant Basciano and Bonanno family soldier Anthony Frascone, together with others associated with the Bonanno family, were involved in a murder of an unknown man in a social club in Queens. This individual was involved in a dispute with Basciano and Frascone, possibly over money relating to gambling. Basciano’s captain at the time, Patrick DeFilippo informed Bonanno family underboss Salvatore Vitale about incident and DeFilippo was instructed to report directly to Bonanno family Massino. DeFilippo told Massino, in substance, that the murder was not planned but rather a “spur of the moment” occurrence and that the body was removed and left in the back of an abandoned car. Massino in turn expressed anger over the involvement of members of the Bonanno family in an unsanctioned murder.9

e. Solicitation To Kill Albanian

In 2001, Basciano sought permission from Bonanno family boss Joseph Massino to kill an Albanian who had assaulted an individual named Benji, a member of the Colombo crime family, in the Bronx. Massino denied Basciano permission to do so.

f. Solicitation To Murder The Girlfriend Of Dominick Cicale

Sometime in the early 2000s, Basciano sought permission to murder the girlfriend of Bonanno family soldier/acting captain (later captain) Dominick Cicale because she had disclosed an indiscretion to Basciano’s wife relating to Basciano’s girlfriend. Basciano sought permission to kill Cicale’s girlfriend from Bonanno family boss Joseph Massino. Ultimately, Massino denied Basciano permission to do so.

[TSNYC]

Solicitation/Conspiracy To Murder Frank Coppa, Jr., Joseph Lino And The Parents of Joseph D’Amico

The defendant Basciano also sought to murder various family members of cooperating witnesses who testified at the trial of Bonanno family boss Joseph Massino. Basciano sought permission to murder, and in some cases conspired to murder, Frank Coppa, Jr., Joseph Lino and the parents of Joseph D’Amico. Frank Coppa, Jr. is a made member of the Bonanno family and the son of Bonanno family captain Frank Coppa, Sr. Frank Coppa, Sr. was the first member of the Bonanno family to agreed to cooperate and testify for the government in the more than seventy-year history of the Bonanno family. Coppa testified at the trial of Bonanno family boss Joseph Massino. Joseph Lino is also a made member of the Bonanno family, and his father, Frank Lino, also a Bonanno family captain, also cooperated with the government and testified at the Massino trial. Finally, Angelo and Rosemarie D’Amico are the parents of Joseph D’Amico, a former acting captain in the Bonanno family and a current cooperating witness, who also testified at the Massino trial. Bonanno family soldier Anthony “Bruno” Indelicato was also involved in discussions pertaining to the murder of the D’Amicos.

h. Solicitation To Murder A Federal Prosecutor

After his arrest in November 2004, Basciano sought permission to kill a federal prosecutor assigned to his prosecution and the prosecution of other members and associates of the Bonanno family. Basciano specifically sought permission to kill the assigned Assistant United States Attorney from Bonanno family boss Joseph Massino, noting that he knew a location where the assigned prosecutor “hung out.”10 Basciano boasted about having this information on more than one occasion; during at least one of those occasions, at the Metropolitan Detention Center, the defendant Patrick DeFilippo was present.

i. Murder of Randolph Pizzolo

Bonanno family associate Randolph Pizzolo was murder in December 2004; Pizzolo was shot multiple times. Basciano ordered the Pizzolo murder because he was “fed up” with Pizzolo’s conduct and wanted Pizzolo’s murder to serve as an example to others in the Bonanno family that Pizzolo’s conducted (detailed below) would not be tolerated.11

On December 1, 2004, Randolph Pizzolo’s body was found in the street in an industrial section of Greenpoint, Brooklyn. His vehicle, a new BMW, was left idling nearby and his wallet, containing over $1,000 in cash, was found on his body. Among others, Bonanno family captain Dominick Cicale and Bonanno family soldier Anthony Aiello were involved in Pizzolo’s murder; Aiello served as the shooter on the Pizzolo murder. At the time of his murder in December 2004, Pizzolo was a Bonanno family associate who reported at times to Bonanno family captain Dominick Cicale. As noted, Cicale was also involved with Basciano and others in the charged murder conspiracy/murder of Frank Santoro.12

j. Conspiracy to Murder Basciano/Conspiracy to Murder DeFilippo; Order To Murder Michael Mancuso

Finally, at various times, both defendants have either sought permission to, or conspired to kill, the other. DeFilippo first sought permission to kill Basciano, although no action was ever taken. Basciano in fact told another member of the Bonanno family that he later learned that DeFilippo sought to kill him. Similarly, Basciano later sought the permission from Bonanno family boss Joseph Massino to kill DeFilippo. This request was also denied. One witness is expected to testify, for example, about messages passed between Massino and Basciano about Basciano’s request to kill DeFilippo. Despite Massino’s directive, Basciano nonetheless ordered a captain in the Bonanno family to “take DeFilippo out” if DeFilippo was released from jail. Further, Basciano ordered this Bonanno family captain to also murder Bonanno family soldier John Joseph Spirito if Spirito was with DeFilippo at the time that DeFilippo was to be murdered.

Additionally, when told that a Bonanno family captain who was close to Basciano was having problems with Bonanno family acting boss Michael Mancuso, Basciano instructed that captain that the captain should, in substance, “do what he had to do,” thereby granting permission to kill Mancuso.

[TSNYC]

a. Gambling Offenses

First, the government seeks to admit evidence of the involvement of Basciano and DeFilippo in uncharged gambling operations, DeFilippo in illegal policy operations and a sports betting operation from the 1970s and Basciano in an illegal sports betting operation. Each crime is directly related to the defendants’ participation in the charged conspiracy as each operation dealt specifically with other individuals associated with the Bonanno family. DeFilippo’s involvement in the policy operation with Vitale and Massino, among others, establishes his role in the Bonanno family’s gambling operations - like the charged sports betting operation - as well as his relationship with Bonanno family underboss Salvatore Vitale and Bonanno family boss Joseph Massino, participants in the charged sports betting operation as well as participants in the Sciascia murder. Similarly, DeFilippo’s involvement in the 1970s in a sports betting operation provides important background evidence with respect to his involvement in the Bonanno family. Basciano’s role in an illegal sports betting operation, similarly, establishes his connection to other members of the Bonanno family, the charged enterprise, including Bonanno family captain Dominick Cicale, who was involved with Basciano in the Santoro murder.

Evidence of these uncharged gambling operations also established the manner in which members and associates of the Bonanno family earn money through criminal activity - the very goal of the charged conspiracy. Accordingly, admission of evidence with respect to the uncharged gambling offenses - which are directly related to the charged enterprise and the relationship between the defendants and other members of the charged enterprise - is admissible to prove the existence of the charged enterprise. See United States v. Clemente, 22 F.3d 477, 483 (2d Cir. 1994)(affirming district court’s admission of uncharged acts noting “Judge Glasser permitted testimony about certain uncharged acts to be admitted for the purpose of demonstrating, with respect to the RICO counts, ‘an enterprise ... and ... the relationship of trust between the parties.’ ”).

b. Acts Relating to Arsons, Stolen Cars, Narcotics Trafficking, Extortion And Loansharking

Like the uncharged gambling operations, evidence of Basciano’s involvement in the uncharged arsons, theft of stolen cars, narcotics trafficking, extortions and loansharking establish his relationship with, and role in, the charged enterprise - the Bonanno family. Again each one of these crimes were committed with other members and associates of the Bonanno family - they are part of the business and operation of the Bonanno family conspiracy charged in Count One - for which the defendant Basciano is charged. These uncharged crimes were primarily committed to earn illicit profits for the Bonanno family - the object of the charged conspiracy.

Further, Basciano’s role in collecting the profits from the San Gennaro feast, for example, is indicative of his rise to power in the Bonanno family, as his elevation to acting boss requires his oversight of the Bonanno family’s diverse criminal activities. Similarly, his role in this extortion further establish his relationship to Joseph Massino, the boss of the Bonanno family, who approved Basciano’s induction into the charged criminal enterprise, and who promoted Basciano to the positions of captain and acting boss.

Basciano’s involvement in the other uncharged acts further supports his relationship with other members of the Bonanno family involved in charged crimes. For example, Bonanno family captain Dominick Cicale and Bonanno family soldier Anthony Indelicato, both involved with Basciano in ecstacy and marijuana trafficking, were also involved with Basciano in the charged conspiracy to murder, and murder of, Frank Santoro. Cicale was also involved at times in Basciano’s gambling operations, including the charged illegal policy operation (charged in racketeering act one) as well as the restaurant extortions. Basciano’s relationship with Bonanno family captain (and cooperating witness) James Tartaglione and others, is established through proof of the extortion of the heating oil industry - as Tartaglione is expected to testify that he attempted to resolve various issues which arose with respect to this extortion. Basciano’s purchase of illegal fireworks ties him to Bonanno family members Generoso Barbieri, Salvatore Maoirino and Paul Spina. The uncharged loansharking conduct ties Basciano to Bonanno family soldiers Barry Mascitti, Generoso Barbieri and Bonanno family associate Larry Weinstein. Finally, Basciano’s request that a false deed be generated ties him directly to the attorney/witness involved, who will testify at trial about Basciano’s other attempts to abuse the legal process in furtherance of the activities of the Bonanno family.

Further, these crimes - extortion, loansharking and narcotics trafficking - are among the primary profit generating activities of the Bonanno family and clear proof of the conspiracy and relevant to establishing the pattern of racketeering activity. See United States v. Triumph Capital Group, Inc., 2003 WL 23318899, *3 (D. Conn. 2003) (“Evidence of uncharged acts may be properly admitted as relevant evidence in establishing both the existence of a RICO enterprise and the pattern of the alleged racketeering activity. As to the latter, evidence of uncharged acts may be properly admitted to prove the continuity of the enterprise’s criminal activity.”).

[TSNYC]

c. Acts Relating To Uncharged Murders, Murder Conspiracies and Murder Solicitations

Basciano’s participation in the uncharged acts involving murder, also each involve other members or associates of the Bonanno family in the use of violence to resolve matters relating to the Bonanno family or its members and associate, which also constitutes evidence of the charged conspiracy. See United States v. Miller, 116 F.3d 641, 682 (2d Cir. 1997) (finding that the trial court did not abuse its discretion by concluding that proof of uncharged murders “was relevant to show the existence and nature of the enterprise and the conspiracy”). Each of the uncharged murders, including the acts relating to the conspiracies/solicitations to murder the families members of cooperating witnesses and the federal prosecutor assigned to both his prosecution and the prosecution of other members and associates of the Bonanno family, is evidence of his use of violence against any individual who threatens the charged enterprise.

The murder of Anthony Colangelo, one of Basciano’s partners in his gambling business, the murder of a policy clerk (shot in a van according to Basciano himself), establish that the Bonanno family and in particular Basciano, use violence to resolve disputes, including disputes arising from its illegal gambling businesses as in the Nunez attempted murder/murder conspiracy. The murder of the unknown male (John Doe) in a Queens social club also likely resulted from a money dispute involving gambling, and also, like each of the uncharged murders, involved other individuals associated with the Bonanno family.

Basciano’s solicitation to murder the girlfriend of Bonanno family captain Dominick Cicale - and his (Basciano’s) request for permission to do so from his superior in the Bonanno family, Bonanno family boss Joseph Massino - establishes his intention to use the resources and authority of the Bonanno family to resolve any threats to him (Basciano) and his reputation as a made member of the Bonanno family (upon which he must rely in his various criminal activities) just as he did in murdering Frank Santoro, an individual he believed sought to kidnap one of his (Basciano’s) children.15 Basciano’s role in the conspiracy to murder Salvatore Caio and Nardino Colotti are further proof, as with the conspiracy/solicitation to kill DeFilippo (as well as DeFilippo’s interest/solicitation to kill Basciano) that the Bonanno family, including the defendants, used murder to resolve conflicts. To be sure, members of the Bonanno family do not use civil process or law enforcement to seek relief: they resort to violence, including murder. Each of these murders/murder conspiracies/murder solicitations were committed in furtherance of the charged enterprise, often at the behest of Basciano, and each involved the participation of individuals associated with the Bonanno family.

The murder of Randolph Pizzolo, by members and associates of the Bonanno family, including Dominick Cicale, further establishes the existence of the enterprise and the relationship of trust between Basciano and Cicale - a bond formed in part during the charged murder of Frank Santoro, which both Cicale and Basciano were involved in (as shooters) together.16

Finally, Basciano’s solicitation to murder one of the federal prosecutors assigned to his prosecution and the prosecution of other high ranking members of the Bonanno family, is an act intended to protect the charged enterprise for which he is charged and therefore proof of the existence of that enterprise.

[TSNYC]

a. Defendants’ Involvement In The Uncharged Crimes Provides Relevant Background Evidence

The uncharged acts detailed above are relevant to establishing the relationship between the defendant Basciano and DeFilippo and other members of the Bonanno family. The crimes provide the necessary context through which the defendants Basciano and DeFilippo and other members of the Bonanno family, developed relationships of trust. Similarly, this evidence fills out for the jury the manner in which the Bonanno family operates. Evidence of the uncharged acts complete the story of the crimes charged and help explain to the jury how the illegal relationship between the participants in the crime developed. See William, 205 F.3d at 33-34. Thus for example, when Bonanno family underboss Salvatore Vitale and Bonanno family boss turned over the control of their illegal sports betting business to the defendant DeFilippo, they also did so with the operation of their illegal policy business. Similarly, Basciano’s involvement in various incoming generating crimes, such as the theft of stolen cars, the operation of an illegal sports betting business and narcotics trafficking, for example, is proof of his involvement in illegal activities to generate income with other members of the Bonanno family (for the Bonanno family) - the very goal of the charged enterprise.

b. Evidence Concerning Of The Defendants’ Involvement In The Uncharged Crimes Evidences Intent, Knowledge and Absence Of Mistake or Accident

The evidence of defendants’ involvement in the uncharged acts detailed above is further admissible to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b); see United States v. Bok, 156 F.3d 157, 166 (2d Cir. 1998).

1. Intent and Knowledge

The defendant’s intent and knowledge will also be at issue at trial with respect to the charged murders as the defendants will necessarily deny his involvement in these crimes, including the Nunez attempted murder, the Sciascia murder, the Santoro murder, the solicitation to murder John Doe (the brother of a member of the Genovese family), among others. Accordingly, the defendants involvement in other acts of violence, including Basciano’s involvement other crimes, including the other murders, murder conspiracies, attempted murders and murder solicitations is probative of this issue.

Further, the fact that Basciano was involved in uncharged murders with certain individuals associated with the Bonanno family, for example his participation with Dominick Cicale in the Pizzolo murder and his involvement with Anthony “Bruno” Indelicato in the solicitation/conspiracy to murder the D’Amicos, is probative of the fact that he would be involved in the charged murders with these individuals. See United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993)(evidence that the defendant had previously engaged in narcotics trafficking with his coconspirator was highly probative of the defendant’s intent to enter another drug conspiracy with the same coconspirator, and to rebut the defendant’s defense of innocent association).

The government may elicit testimony about these uncharged murders at trial, thereby establishing Basciano’s intent in those murders as well as the charged murders.

2. Motive and Identity

Where identity is in issue, as it is in this case, courts have routinely approved the admission of other crimes evidence to establish the defendant as a perpetrator of the crime charged. See, e.g., United States v. Sappe, 898 F.2d 878 (2d Cir. 1990)(evidence of previous bank robberies admissible to prove defendant was participant in charged conspiracy); United States v. Mills, 895 F.2d 897 (2d Cir. 1990) (Rule 404(b) permits government to show that defendant was in fact a perpetrator of conduct in issue with proof of “a ‘signature crime,’ i.e., a modus operandi where the crimes are ‘so nearly identical in method as to ear-mark them as the handiwork of the accused.’ ”). The “similarity sufficient to admit evidence of past acts to establish a recurring modus operandi need not be complete; it is enough that the characteristics relied upon are sufficiently idiosyncratic to permit a fair inference of a pattern’s existence.” United States v. Sliker, 751 F.2d 477, 486-87 (2d Cir. 1984).

Identity is always in issue when a defendant claims, as the defendants DeFilippo and Basciano undoubtedly will, that they did not commit the crime charged. See United States v. Danzey, 594 F.2d 905, 913 (2d Cir. 1979)(in context of Rule 404(b), “identity” is “used as a shorthand for referring to proof of the doing of the criminal act by this defendant”). Thus, for example, in United States v. Sappe, 898 F.2d 878, 880 (2d Cir. 1990), the Court held admissible evidence showing that the defendant previously had committed three bank robberies and one attempted bank robbery. All the prior crimes had been committed during a five-week period approximately one year prior to the charged bank robbery within a nine-block area in midtown Manhattan. In each instance, the defendant used a toy gun hidden inside a folded newspaper to threaten the bank teller.

Evidence of the Colangelo murder is also relevant to establish Basciano’s motive in the murder conspiracy/attempted murder of David Nunez, as both related (the Colangelo murder circumstantially) to the operation of the charged illegal policy operation. Further, Basciano’s involvement in each of the uncharged murders demonstrate a modus operandi, and as such, are relevant to identity. This evidence also is relevant and admissible because it demonstrates a common scheme or plan and a continuing plan, scheme, or conspiracy. Each of the uncharged murders, as with the charged murders, are typical “gangland hits,” where the victims were murdered by gunshot.

Identity is also a basis to admit evidence of Basciano and DeFilippo in the uncharged gambling offenses, uncharged loansharking and extortions. For example the participation of Basciano and DeFilippo in other gambling offenses, with other members of the Bonanno family, is relevant to his involvement in the charged gambling offense, charged in racketeering acts one, two and four and Counts Two, Three and Four.

[TSNYC]

In the case at bar, the government seeks to introduce all or portions of audio recordings involving members of the Bonanno family; these recordings contain coconspirator statements which are admissible pursuant to Rule 801(d)(2)(E). First, these recordings were made by James Tartaglione, a cooperating witness, who was a longstanding and high ranking member of the Bonanno family during meetings of members of the Bonanno family, including Bonanno family acting boss (and acting consigliere) Anthony Urso, Bonanno family acting underboss Joseph Cammarano and the defendant Vincent Basciano.19 Accordingly, each of the individuals recorded were involved in the conspiracy encompassing the Bonanno family and the LCN generally.

Next, the recorded statements, were made in furtherance of this conspiracy. The portions of the recordings that the government seeks to introduce involve conversations primarily among Urso, Cammarano, the defendant Basciano, who at the time was a captain in the Bonanno family, and Tartaglione and include discussions about the operation and management of the Bonanno family. During various conversations, Urso, Cammarano Basciano and Tartaglione, discuss the induction of new members into the Bonanno family and methods for maintaining the strength of the Bonanno family.

For example, during September 3, 2003 and October 26, 2003 meetings, Urso, Cammarano and Tartaglione discussed, among other things, the structure of the Bonanno family; how the other mafia families viewed them; who else in the Bonanno family might be cooperating; how if they took violent action against a cooperating witnesses’ family, people would think twice about cooperating with the government.

During the November 9, 2003 meeting, Urso, Cammarano and Tartaglione discussed, among other things, continuing extortions; the structure of the family; ways to keep the family strong and the Bonanno family’s “war chest,” a fund which is used to pay the legal fees of members of the Bonanno family.

The two remaining recordings, the December 21, 2003 recording an the January 18, 2004 recording, including the defendant Basciano’s conversations with Bonanno family captain James Tartaglione, Bonanno family acting boss and acting consigliere Anthony Urso and Bonanno family acting underboss Joseph Cammarano (Cammarano was only present for the January 18, 2004 recording). During both recordings, Basciano discusses matters relating directly to the Bonanno family - the charged enterprise.

At trial, the government will move to admit these recordings and others pursuant to Rule 801(d)(2)(E). These conversations involve statements by coconspirators made in furtherance of the Bonanno family and LCN-wide conspiracy. Among other things, these conversations serve to “foster trust and cohesiveness among coconspirators” and to “inform each other as to the progress or status of the conspiracy.” See Orena 32 F.3d at 712-714. Accordingly, the recordings are admissible pursuant to Rule 801(d) (2) (E)

CONCLUSION

For the reasons outlined above, the Court should grant the government’s in limine motion to admit: (A) uncharged crimes that are part of the charged conspiracy; (B) uncharged crimes that are admissible, in the alternative, pursuant to Federal Rule of Evidence 404(b); (C) uncharged crimes that are admissible, in the alternative, as evidence of consciousness of guilty; and (D) coconspirator statements pursuant to Federal Rule of Evidence 801(d)(2)(E), including coconspirator statements captured on consensual recordings.

Respectfully submitted,

ROSLYNN R. MAUSKOPF

United States Attorney

Eastern District of New York

Greg Andres

Amy Busa

Winston Y. Chan

Assistant United States Attorneys (Of Counsel)

Footnotes

1

In detailing these crimes, the government provides notice pursuant to Federal Rule of Evidence 404(b), although the government does not commit to seeking the admission necessarily of evidence of each these crimes as those decisions will be made in part based on other evidence admitted at trial and other trial decisions.



2

To the extent it is considered to be “other acts” evidence, the government hereby discloses that a cooperating witness is expected to testify at trial that he provide a loansharking loan to DeFilippo, who in turn used that money to facilitate the operation of his own loansharking business. This evidence will be admitted as relevant to DeFilippo’s involvement in the charge loansharking crimes, but in an excess of caution of the government provides notice of this crime as other acts evidence as well. The government may also seek to admit recent instants of the defendant Basciano’s involvement in loansharking.



3

Additionally, the government may also seek to admit evidence of the defendant Basciano’s involvement, with another member of the Bonanno family, in an arson of various trucks in approximately 2003.



4

The government also provides notice, pursuant to Federal Rule of Evidence 404(b), that Basciano was involved in a conspiracy to distribute heroin in the late 1980s and early 1990s, for which he was arrested, indicted and ultimately acquitted in the Southern District of New York (the so-called “Blue Thunder” trial).



5

Basciano also proposed to do a “pot” deal with another witness who may testify at trial, although this transaction never took place.



6

During a recorded conversation with Bonanno family captain James Tartaglione in December 2003, Basciano made a specific reference to the Feast, the involvement of the Genovese family (the “Westside”) in the Feast and inquired about Tartaglione’s influence at the Petrocelli Lighting company. The following exchanged took place:

BASCIANO: I got it from ... No let me ask you a question. Petricelli lighting, they’re around you?

TARTAGLIONE: No, he’s with the Westside.

BASCIANO: He’s with the Westside? Too bad.

TARTAGLIONE: Listen to me.

BASCIANO: Cause I maybe could use them to do the lights for the Feast.

TARTAGLIONE: Who does the lights for the Feast?

BASCIANO: We have a guy who’s with the Westside.

TARTAGLIONE: Wasn’t that Angelo Prisco(ph)?

BASCIANO: Yes, we just straightened it out. It is Angelo Prisco.

TARTAGLIONE: Yeah, I remember Angelo Prisco.

BASCIANO: That (UI) fellow, that who (UI).

Later, during that conversation, Basciano specifically referenced Bonanno family soldier Perry Criscitelli, who at one time controlled the Feast, and the fact that Perry was on record with Basciano. Basciano told Tartaglione: “I got Perry now.” (Tartaglione Consensual Recording, December 21, 2003).



7

The government may also elicit the following at trial and hereby gives notice pursuant to Federal Rule of Evidence 404(b): that without specifying particular details, Basciano admitted that he killed a “numbers” clerk (i.e., someone involved in a policy operation) in a van. Basciano has also made admissions to this individual that he was involved in multiple murders (in excess of ten) with Bonanno family soldier Anthony Donato. Additionally, the government may admit at trial, and hereby provides Rule 404(b) notice, that Basciano also was involved in a murder with members of the Bonanno family in which Alan Handler served as a lookout.



8

Colangelo was also involved with Basciano and Donato in the operation of a video rental store, located at E. 116th Street and First Avenue in New York, New York (in the vicinity of Pleasant Avenue), called Harlem Video. Probation records reflect that both Basciano and Donato were co-owners of this establishment. A car used by Colangelo was recovered by law enforcement authorities in the vicinity of Harlem Video on May 28, 1987.



9

The government may also seek to admit (and hereby provides notice) that Basciano admitted his involvement in the murder of an individual (with Anthony Donato) who was “hog tied” and whose body was left on property owned or controlled by Salvatore Zotolla, also known as “Sally Daz.” Zotolla is involved with Basciano in the operation of Basciano’s illegal video joker poker business.



10

As noted in our prior submissions, the government will not seek to identify the name of the particular prosecutor during the trial in this matter. However, the government may chose to identify the prosecutor at trial with respect to a separate statement that Basciano made with respect to this prosecutor. In particular, Basciano told a cooperating witness that, in sum and substance, the prosecutor was ruining the Bonanno family. Prior to the introduction of this testimony, the government will alert the Court and parties of its intent to admit this information to obtain a ruling on this issue from the Court.



11

Pizzolo, among other indiscretions, arrived at a restaurant and was “shooting” his mouth off and carrying a gun. At around this time, a Genovese family associate had “disrespected” Bonanno family captain Nicholas Santoro and in retaliation, Basciano ordered Joseph Cammarano, a member of the Bonanno family, to kill this Genovese family associate. Cammarano reported, however, that he was unable to locate the Genovese associate. Accordingly, the government herein also provides notice pursuant to Rule 404(b) that Basciano ordered the murder of this Genovese family associate (believed to be Joseph Bonnelli). Basciano then ordered another member of the Bonanno family to kill Basciano.

[TSNYC]

****thought I’d share. Some interesting tidbits in here. Basciano was involved in so many different scores/businesses.

[JoeCamel]

Good looks, tough to really find anything on him

[Amershire_Ed]

****thought I’d share. Some interesting tidbits in here. Basciano was involved in so many different scores/businesses.

For as loud and ostentatious as Bascisno was, it does seem like he was able to do *a lot* of dirt under the radar. Moving H, murder, etc.

Also out of all the wiseguys I’ve read about, I think Basciano made me laugh out loud more than any other. His “there’s no guns, no ballistics, no DNA, no nothing…and plus I didn’t even do it” rant to a wired up Louis Tartaglione is a first ballot Hall of Fame mob comedy moment.

[Pogo The Clown]

charged murder of Frank Santoro, which both Cicale and Basciano were involved in (as shooters) together

Frank Santoro: Oh no!
Basciano: Oh yes!


Pogo

[Hired_Goonz]

Great info. It's crazy to me that judges will sometimes allow the government to bring up crimes that you haven't been charged with let alone convicted of. "He murdered another guy too. No we never indicted him for it....but a guy we know says he overheard him talking about it in Blimpie's" lol can you imagine you're on trial for your life and they pull stuff like this. I say if a judge allows the government to present crimes you haven't been charged with, the defense should be allowed to make a presentation on past shenanigans and injustices committed by the government.