government's motions in limine: fotios geas case

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK------------------------------x

:UNITED STATES OF AMERICA, :

:- v.- : S4 09 Cr. 1239 (PKC)

:ARTHUR NIGRO, :

a/k/a “Artie,” :a/k/a “the Short Guy,” :a/k/a “the Little Guy,” :

FOTIOS GEAS, :a/k/a “Freddy,” and :

TY GEAS, ::

Defendants. : :

------------------------------x

GOVERNMENT’S MOTIONS IN LIMINE

PREET BHARARAUnited States Attorney for theSouthern District of New YorkAttorney for the United States

of America

MARK LANPHERELIE HONIGDANIEL S. GOLDMANAssistant United States Attorneys

- Of Counsel -

Case 1:09-cr-01239-PKC Document 110 Filed 01/07/11 of 56

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK------------------------------x

:UNITED STATES OF AMERICA, :

:- v.- : S4 09 Cr. 1239 (PKC)

:ARTHUR NIGRO, :

a/k/a “Artie,” :a/k/a “the Short Guy,” :a/k/a “the Little Guy,” :

FOTIOS GEAS, :a/k/a “Freddy,” and :

TY GEAS, ::

Defendants. : :

------------------------------x

GOVERNMENT’S MOTIONS IN LIMINE

The Government respectfully submits motions in limine: (1)

to admit evidence of other bad acts of the defendants as relevant

proof of the charged crimes; (2) to admit evidence of the

defendants’ prior prison terms; (3) to admit statements made by

defendant Fotios Geas regarding the murder of Gary Westerman; (4)

to admit certain statements that the defendants’ victims (Adolfo

Bruno and Gary Westerman) made to law enforcement prior to their

murders; (5) to admit expert testimony regarding organized crime;

and (6) to empanel an anonymous jury.


I. Motion to Admit Evidence of Other Bad Acts of the Defendants

The Government respectfully requests an in limine

ruling from the Court that evidence of various crimes and other

bad acts of the defendants and their co-conspirators may be

offered at trial. The proffered evidence is admissible to prove

the specific charged predicate offenses underlying the

racketeering conspiracy; to prove the existence and nature of the

charged racketeering enterprise more generally; and to prove the

background of the relationships of the defendants with their co-

conspirators, and with the enterprise.

A. Relevant Facts

1. The Indictment – Racketeering Charges

Count One of the Indictment charges Arthur Nigro,

Fotios Geas, and Ty Geas with conspiring to participate in the

affairs of a racketeering enterprise, from in or about 2001

through in or about February 2010, in violation of Title 18,

United States Code, Section 1962(d). (Indictment ¶ 14). The1

charged racketeering enterprise is the Genovese Organized Crime

Family of La Cosa Nostra (the “Genovese Family”). (Indictment ¶¶

1-8, 14). Count One charges that Nigro, Fotios Geas, Ty Geas,

and their co-conspirators agreed to conduct and participate in

the affairs of the Genovese Family through a pattern of

All references to paragraphs of and Counts in the1

Indictment are references to the proposed Redacted Indictment,being filed today by the Government under separate cover.

2


racketeering activity consisting of the following underlying

predicate offenses: murder, extortion, loansharking, gambling,

interstate travel, union corruption, and narcotics trafficking –

all committed in violation of federal and/or state statutes that

are cited specifically in the Indictment. (Indictment ¶ 14).

Count Two of the Indictment charges Nigro, Fotios Geas,

and Ty Geas with a substantive racketeering offense, from in or

about 2001 through in or about February 2010, in violation of

Title 18, United States Code, Section 1962(c). (Indictment ¶¶

21-31). Count Two is comprised of nine separate racketeering

acts, including the following: (1) Racketeering Act One, the

November 2003 murder of Adolfo Bruno, which is alleged against

all three defendants (Indictment ¶ 23); (2) Racketeering Act Two,

the November 2003 murder of Gary Westerman, which is alleged

against Fotios Geas and Ty Geas (Indictment ¶ 24); (3)

Racketeering Act Three, the May 2003 attempted murder of Frank

Dadabo, which is alleged against all three defendants (Indictment

¶ 25); (4) Racketeering Act Four, the Fall 2003 conspiracy to

murder Louis Santos, which is alleged against all three

defendants (Indictment ¶ 26); (5) Racketeering Act Five, the

conspiracy to extort and extortion of James Santaniello, which is

alleged against all three defendants (Indictment ¶ 27); (6)

Racketeering Act Six, the conspiracy to extort Carlo and Genaro

Sarno, which is alleged against Fotios Geas and Ty Geas

3


(Indictment ¶ 28); (7) Racketeering Act Seven, the conspiracy to

extort and attempted extortion of Michael and Anthony Grant,

which is alleged against all three defendants (Indictment ¶ 29);

(8) Racketeering Act Eight, loansharking involving loans made in

Florida, which is alleged against Arthur Nigro (Indictment ¶ 30);

(9) Racketeering Act Nine, operation of an illegal gambling

business, which is alleged against Arthur Nigro, (Indictment ¶

31).2

2. Evidence of Other Bad Acts

The Government intends to offer evidence at trial of

numerous additional specific crimes and bad acts committed by

each of the defendants. As discussed in more detail below, the

evidence set forth in this motion is admissible to prove the

specific charged predicate offenses underlying the racketeering

conspiracy; to prove the existence and nature of the charged

racketeering enterprise more generally; and to prove the

background of the relationships of the defendants with their co-

conspirators, and with the enterprise.

Proof of the criminal acts described below will, in

most instances, take the form of testimony from cooperating

witnesses. In a few instances, there will be additional evidence

The Government does not intend to proceed to trial with2

the originally-numbered Racketeering Act Nine of the S4Indictment, or the originally numbered Counts Eight throughEleven, which alleged a specific instance of loansharking againstArthur Nigro.

4


such as corroborating testimony or evidence from law enforcement.

To the extent that the Government becomes aware, prior to or

during the course of trial, of evidence of additional uncharged

acts or crimes that it will seek to offer, the Government will

provide prompt notice to the Court and defense counsel.

The following is a list of certain evidence – in rough

chronological order - beyond the specifically identified crimes

in the Racketeering Acts and additional substantive counts that

the Government seeks to prove at trial:

a. Prison Beating by Ty Geas

Anthony Arillotta, who is expected to testify at trial

pursuant to a cooperation agreement with the Government, met Ty

Geas for the first time when they were incarcerated in the same

facility in approximately 1990. While incarcerated together,

Arillotta and Ty Geas formed a close bond and, through Ty Geas,

Arillotta met Fotios Geas (when he visited his brother, Ty, in

prison). Indeed, while incarcerated together, Arillotta and Ty

Geas made plans to continue committing crimes together upon their

release. Arillotta was scheduled to be released in approximately

February 1991; Ty Geas was scheduled to be released in

approximately March 1991.

However, after Arillotta was released, Arillotta

learned from both Fotios Geas and Ty Geas that Ty would not be

released as scheduled and, rather, would be incarcerated for

5


approximately 4 more years, because he had viciously assaulted a

prison guard. Specifically, Ty Geas told Arillotta that he had

assaulted the guard after he believed the guard disrespected him.

Fotios Geas, who was then on the street with Arillotta, also told

Arillotta the same thing. This delayed Arillotta’s plan to

commit crimes with Ty Geas, while at the same time reinforcing

the confidence Arillotta had that Ty Geas was a “capable” guy who

could help to commit acts of violence once released from prison.

In the meantime, while awaiting Ty Geas’s release from prison,

Arillotta began to commit crimes with Fotios Geas, as described

in more detail below.

b. Robberies by Fotios Geas and Ty Geas

Arillotta is expected to testify that on multiple

occasions beginning in the early 1990s, he, Fotios Geas, and

others (including Louis Santos, whom the defendants later

conspired to kill because they believed him to be a law

enforcement informant) robbed goods from tractor trailers to sell

on the street in Massachusetts. While robbery is not a charged

predicate offense of the RICO conspiracy, these robberies were a

critical factor in the developing criminal relationship between

Arillotta and Fotios Geas, and Fotios Geas’s association with the

enterprise.

In addition, Arillotta is expected to testify that

Fotios and Ty Geas committed numerous additional robberies

6


throughout 1990s and 2000s. In particular, Fotios and Ty Geas

robbed drug dealers of drugs and/or money on numerous occasions,

and used the proceeds of those robberies to finance their

narcotics trafficking. Evidence of these robberies is directly

relevant not only to prove the conspiratorial relationships at

issue, but also to prove the charged predicate offense of

narcotics trafficking; Fotios and Ty Geas frequently robbed other

drug dealers of narcotics and then sold the narcotics themselves.

Separately, Frank Roche is also expected to testify3

that Fotios Geas and Ty Geas discussed committing robberies with

him. In addition, Fotios Geas made arrangements for Roche to

commit robberies in the New York area after Roche had murdered

Bruno and fled the area (which Roche did with Fotios Geas’s

assistance).

c. 1996 Truck Theft by Fotios Geas

The Government expects to offer evidence of a 1996

robbery that Fotios Geas committed along with Gary Westerman (who

eventually became the victim of the November 4, 2003 murder

charged in Count Two of the Indictment). Both Fotios Geas and

Westerman were arrested on May 28, 1996, after they were caught

trying to sell merchandise that they had robbed from a tractor

trailer days earlier. In total, the stolen trailer and its

Roche is expected to testify at trial, pursuant to a3

cooperation agreement with the Government.

7


contents (which primarily consisted of 48 computer systems) were

valued at approximately $100,000.

After their arrests, both Fotios Geas and Gary

Westerman were released on bail. Within weeks of his arrest,

Gary Westerman began cooperating with the Massachusetts State

Police, including by providing information about Fotios Geas.

Indeed, the Government expects to offer testimony that on June

20, 1996, Gary Westerman provided a tip to the Massachusetts

State Police that led directly to a car stop of Fotios Geas.

Fotios Geas was found in possession of not only merchandise from

the tractor trailer robbery, but also marijuana and a ledger

appearing to document loansharking debts, for which he was again

arrested. Fotios Geas and Westerman ultimately both pleaded

guilty to the tractor trailer theft, and each served several

years in prison.4

The Government intends to offer testimony and evidence

about this theft not only to show the relationship among co-

conspirators in the enterprise, but also to establish Fotios and

Ty Geas’s motive for murdering Gary Westerman seven years later.

Specifically, the Government expects Arillotta to testify that

Notwithstanding the fact that he cooperated with the4

Massachusetts State Police, Westerman thereafter breached hiscooperation agreement by committing additional crimes, includinga check fraud scheme. At the time of sentencing on the 1996truck theft, Westerman asked for no consideration for havingcooperated, hoping that it would conceal the fact of hiscooperation - which had not been made public.

8


both Fotios and Ty Geas repeatedly stated that they believed

(correctly) that Westerman was an informant for law enforcement

and, more specifically, believed (correctly) that Westerman had

cooperated with the authorities against Fotios Geas following the

1996 truck heist for which they were both arrested.

d. Prior Conspiracies to murder Gary Westerman

Anthony Arillotta is expected to testify regarding two

prior conspiracies to murder and/or shoot Gary Westerman, each of

which he himself participated in, along with Fotios Geas. First,

Arillotta is expected to testify that shortly after Fotios Geas’

initial arrest in the 1996 tractor trailer theft case, Fotios

Geas reached out for Arillotta’s assistance in a plan to kill

Westerman - for fear that Westerman would cooperate against him.

Arillotta, Louis Santos, and Fotios Geas made arrangements to

carry out such a murder, whereby Santos would lure Westerman to a

van where Arillotta and Fotios Geas would be waiting, and where

Fotios Geas would shoot him. The plan was aborted after Santos

went to Westerman’s house to lure him out, and a woman answered

the door.

Second, in approximately 2002, Arillotta sought

assistance from Fotios Geas and an individual named Michael

DeCaro in a plan to shoot Gary Westerman. This time, the primary

motivation for shooting Westerman was that Westerman was dating

Arillotta’s sister-in-law. Arillotta did not approve, and

9


thought Westerman was disrespecting him by continuing to date his

sister-in-law. Arillotta and Fotios Geas developed a plan for

Fotios Geas (who was at that point again friendly with Westerman)

to lure Westerman to a dinner. Fotios Geas would then page

Arillotta, and walk outside with Westerman, at which time

Arillotta and DeCaro would do a drive-by shooting of Westerman.

The plan was initiated – Fotios geas in fact lured Westerman to

the location – but, because of miscommunication, Arillotta and

DeCaro did not get to the scene in time to shoot Westerman. The

plan was then aborted.

In each case, these events not only go to establishing

the existence of the enterprise and the predicate act of murder;

but also to showing how the relationships developed among Fotios

Geas and Arillotta, and establishing Fotios and Ty Geas’s motives

for killing Westerman.

e. Conspiracy to Murder Guiseppe Manzi5

The Government intends to offer evidence regarding

Fotios and Ty Geas’s relationship with Guiseppe Manzi, including

their efforts to murder him in the summer and fall of 2003. This

evidence is admissible proof of Fotios and Ty Geas’s membership

in the enterprise, and their efforts to commit the charged

The Government may seek to add a racketeering act to5

Count Two, the substantive RICO charge, relating to the Manzimurder conspiracy. At a minimum, as discussed herein, evidenceof this act is directly relevant to the RICO conspiracy chargedin Count One.

10


predicate racketeering offenses of murder and narcotics

trafficking. In addition, the evidence is necessary to prove the

relationship of trust that existed among the defendants,

Arillotta, and Roche, as they not only participated in these

crimes together, but would go on to commit additional serious

crimes in the following months.

Guiseppe Manzi is a narcotics dealer based in

Springfield, Massachusetts who has long been affiliated with

Italian Organized Crime. Fotios and Ty Geas’s relationship with

Manzi was rooted in their rival criminal activities. For

example, in approximately 2002, Fotios and Ty Geas robbed Manzi’s

cousin at gunpoint of approximately $100,000 in marijuana. In6

addition, Ty Geas was frustrated that he believed Manzi was

stealing his marijuana customers and was an informant for law

enforcement.

The rivalry escalated in 2003, when Fotios and Ty Geas

enlisted Frank Roche to murder Guiseppe Manzi, and initially

offered Roche $10,000 to kill Manzi. Around the time of the

murder plot, Fotios and Ty Geas were involved in numerous

altercations with Manzi and members of Manzi’s crew. For

example, at one point in summer 2003, Ty Geas broke a window in

Manzi’s restaurant because Manzi refused to confront him.

Fotios and Ty Geas agreed to give approximately $5,0006

of the proceeds of this robbery to Adolfo Bruno.

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Shortly thereafter, on August 29, 2003, Fotios and Ty Geas,

Arillotta, Roche, and numerous others, participated in a fight

and shooting at the Civic Pub in downtown Springfield. That

evening, Arillotta’s crew received a telephone call that Brandon

Croteau (another associate of the defendants) had been involved

in a confrontation with Manzi and several of Manzi’s associates.

Believing that Manzi and his associates were then located at the

Civic Pub, Arillotta, Roche, Fotios Geas, Ty Geas, and several

others drove to the Civic Pub to confront them. The group was

armed with a firearm, golf clubs, baseball bats, and an ice pick.

As they arrived at the Civic Pub, they were confronted by several

employees. Fotios Geas then brandished a firearm and shot

several rounds at the front door. Two individuals were injured

as a result of this shooting. Fotios and Ty Geas then fled the

scene, as did Arillotta, Roche, and others.7

Two nights later, on August 31, 2003, Arillotta’s home

was shot numerous times. The same evening, Arillotta met with8

Fotios and Ty Geas, and drove around the city planning to locate

those whom they believed had shot at Arillotta’s house (suspected

Springfield Police Officers recovered a handgun, three7

golf clubs, an ice pick, a baseball bat, and eight .22 calibershell casings at the scene. A short time after the shooting,police officers stopped a car driven by Ty Geas. Arillotta wasone of four passengers, and the police recovered an ice pick inthe car.

Arillotta was not present at the time, but his wife and8

children were. No one was hurt.

12


to be Manzi and his associates), with an intention of killing

them with AK-47 assault rifles. Ultimately, they did not locate

or kill anyone that evening.

However, Frank Roche is expected to testify that after

this shooting, Fotios and Ty Geas “upped” their offer, and

promised him $25,000 if he would murder Manzi and those who had

shot Arillotta’s house. Fotios and Ty Geas suggested that he use

an AK-47 assault rifle and execute the murders at a busy

intersection in downtown Springfield, Massachusetts. Ultimately,

the plan was aborted.

f. Additional Acts of Violence by the Defendants

The defendants are specifically charged with several

completed and planned acts of violence, including the murders of

Adolfo Bruno and Gary Westerman, the attempted murder of Frank

Dadabo, and the conspiracy to murder Louis Santos. The

Government also intends to offer evidence of numerous additional

acts of violence by the defendants, in each case as evidence of

their criminal relationships with each other and their co-

conspirators, their relationship with the enterprise, and their

use of threats and intimidation to enforce their criminal aims.

For example, in October 2003, Fotios Geas offered Frank

Roche $1,000 to assault a Massachusetts resident named Jeff

Solely whom Fotios Geas indicated “needed to be taught a lesson”

because he was having a relationship with the wife of another mob

13


associate. Roche carried out the beating with a baseball bat,

and the victim ultimately went to the hospital. Several days

later, Ty Geas gave Roche $1,000 for having carried out the

attack.

In the fall of 2003, Arthur Nigro participated in a

violent beating of a Genovese Family associate named Anthony

DeFranco in Bronx, New York. This beating was rooted in a

dispute Nigro was having with another member of the Genovese

Family, and Nigro’s belief that DeFranco had disrespected another

individual, named Thomas Amaratti.

On July 11, 2004, Fotios Geas (along with another

associate named Angelo Malafronte) violently assaulted three

individuals in downtown Springfield, Massachusetts. Fotios Geas

and Malafronte were arrested for that assault, and Geas

subsequently pleaded guilty on February 22, 2005, to assault and

battery with a dangerous weapon in Hampden County Superior Court.

Geas was sentenced to two years’ imprisonment.

In August 2006, Fotios Geas, who was carrying a gun at

the time, and others participated in a violent beating of Felix

Tranghese. There will be evidence that Fotios Geas did this9

because he believed Tranghese was preventing him from being able

to extort people successfully, and that Arthur Nigro approved of

Tranghese is expected to testify at trial, pursuant to9

a cooperation agreement with the Government.

14


the beating because Tranghese had been “put on the shelf.”

Tranghese will testify that, as a result of this beating, his

ties with the defendants on trial and the Genovese Family were

severed.

g. Additional Extortions

The defendants are specifically charged with extorting

and/or conspiring to extort three sets of victims: (1) James

Santaniello, the owner of the Mardi Gras and other establishments

(Racketeering Act Five); (2) Genaro and Carlo Sarno, the owners

of a vending machine business (Racketeering Act Six); and (3)

Michael and Anthony Grant, the owners of the Hustler strip club

and other establishments (Racketeering Act Seven).

To prove the predicate offenses of extortion and

loansharking in the racketeering conspiracy, as well as to

establish the defendants’ relationship with the enterprise and

with each other, the Government expects to offer cooperating

witness testimony regarding the extortion and attempted extortion

of a number of other victims. These victims include but are not

limited to owners of local businesses, such as the Red Rose, Café

Manhattan, and the Hot Club in Springfield, Massachusetts, Club

Blu in Hartford, Connecticut, assorted Springfield-based

loansharks and bookmakers (including Robert Desimone, Louis

Naioleari, and Ryan Fattini), and (in the case of Nigro only)

assorted individuals and business owners in Florida (including

15


Michael Kordish and the owners of Opsis Tech. Corp.). This

testimony will be limited in nature, and will be almost

exclusively in the form of cooperating witness testimony.

h. Narcotics Trafficking

The Government expects to offer evidence that each of

Ty and Fotios Geas were involved in trafficking marijuana,

cocaine, and other drugs during the time charged in the RICO

conspiracy. The Government further expects to offer testimony

that several other members and associates of the Genovese Family

located in Springfield (including Arillotta, Emilio Fusco and

Louis Santos) were also involved in narcotics trafficking, both

with the Geases and separately, as well. Narcotics trafficking

is one of the RICO predicates alleged in the Indictment. In

addition, this evidence will be directly relevant to the

defendants’ relationship with their co-conspirators, and their

motivation for committing certain of the substantively charged

crimes (such as the murder of Gary Westerman).

B. Discussion

All of the evidence discussed above is admissible at

trial on at least one of three independent bases.

1. Predicate Offenses Charged In The RacketeeringConspiracy

Evidence of Fotios and Ty Geas’s plan to murder

Guiseppe Manzi (and all of the evidence regarding their

16


relationship preceding the murder plan), as well as Fotios Geas’s

role in the prior plans to murder and/or shoot Gary Westerman, is

admissible because it is direct proof of one of the specific

predicate offenses charged in Count One of the Indictment:

murder. The same is true of the evidence of additional

extortions and narcotics trafficking that the Government intends

to offer at trial, as extortion and narcotics trafficking are two

of the specific predicate offenses charged in Count One.

The defendants’ participation in and knowledge of the

charged underlying predicate offenses is directly relevant and

admissible here to prove the charged racketeering conspiracy.

The Second Circuit has held that, to prove that a defendant

participated in a racketeering conspiracy, the Government need

only show that the defendant agreed that either he or other co-

conspirators would commit two or more underlying predicate acts:

To establish a RICO conspiracy, thegovernment must prove that a defendant agreedto participate in the affairs of theenterprise through a pattern of racketeeringactivity. However, in Salinas v. UnitedStates, 522 U.S. 52, 118 S.Ct. 469, 139L.Ed.2d 352 (1997), the Supreme Court madeclear that to establish this pattern, thegovernment need not prove that the defendanthimself agreed that he would commit two ormore predicate acts. See id. at 64, 118S.Ct. (noting that, although the RICO statute“broadened conspiracy coverage by omittingthe requirement of an overt act; it did not,at the same time, work the radical change ofrequiring the government to prove [that] eachconspirator agreed that he would be the oneto commit two predicate acts.”). Indeed,

17


Salinas held that to be found guilty of RICOconspiracy, a defendant need only know of,and agree to, the general criminal objectiveof a jointly undertaken scheme.

United States v. Yannotti, 541 F.2d 112, 122 (2d Cir. 2008)

(internal citations omitted). Thus, the Government may prove a

defendant’s participation in a racketeering conspiracy either by

proving (1) that the defendant himself participated in at least

two predicate acts, or (2) that the defendant agreed that other

co-conspirators would commit at least two predicate acts. Much

of the evidence discussed above goes to both of these points: the

evidence shows that not only did each of the defendants know that

his co-conspirators would commit the specified predicate offenses

– murder, extortion, and narcotics trafficking – but that each of

the defendants himself directly participated in certain of those

crimes.10

2. Nature And Existence Of Charged RacketeeringEnterprise

Separate and apart from the fact that much of the

evidence described above is admissible as direct proof of

specific predicate offenses of the charged conspiracy, all of the

evidence is independently admissible to prove the existence,

nature, and background of, as well as membership in, the charged

Rule 404(b) is not relevant here because the evidence10

constitutes direct proof of elements of the crimes charged in theracketeering counts of the Indictment. See, e.g., Coonan, 938F.2d at 1561 (determining admissibility of uncharged criminal actevidence in a RICO case without regard to Rule 404(b)).

18


enterprise. In a racketeering case, the Government must prove

(a) the existence of the racketeering enterprise alleged in the

indictment, and (b) a “pattern of racketeering activity.” See 18

U.S.C. §§ 1959(a), 1961(5), 1962(c), 1962(d). The Second Circuit

has repeatedly held that the Government may prove the existence

and nature of the racketeering enterprise, as well as the pattern

of racketeering activity, by offering evidence of crimes

committed by persons associated with the enterprise that are not

specifically charged in the indictment. See United States v.

Diaz, 176 F.3d 52, 79 (2d Cir.), cert. denied, 528 U.S. 875

(1999); United States v. Miller, 116 F.3d 641, 682 (2d Cir.

1997), cert. denied, 524 U.S. 905 (1998). This rule applies to

criminal acts committed by the charged defendants, as well as

acts committed by other members of the enterprise. United States

v. Brady, 26 F.3d 282, 286-88 (2d Cir.) (Section 1959 case),

cert. denied, 513 U.S. 894 (1994); United States v. DiNome, 954

F.2d 839, 843 (2d Cir.), cert. denied, 506 U.S. 830 (1992).

Thus, in United States v. Diaz, a racketeering case,

the Second Circuit affirmed the district court’s decision to

admit testimony concerning uncharged crimes – including drug

trafficking, the stockpiling of weapons to protect the gang’s

drug trade, and acts of violence committed on behalf of the gang

– because “it tended to prove the existence, organization and

nature of the RICO enterprise, and a pattern of racketeering

19


activity by each defendant-appellant.” 176 F.3d at 79.

Similarly, in United States v. Miller, the Second Circuit held

that evidence “of numerous killings by” members of the

racketeering enterprise was properly admitted “as proof of the

existence of the RICO enterprise alleged in the indictment which

used such acts of violence in furtherance of its narcotics

conspiracy.” 116 F.3d at 682.

In United States v. DiNome, the Second Circuit

recognized the propriety of demonstrating the existence of a

racketeering enterprise through its members’ violent acts,

regardless of whether those acts were expressly charged in the

indictment. The Court stated:

[E]vidence of numerous crimes, including theroutine resort to vicious and deadly force toeliminate human obstacles, was relevant tothe charges against each defendant because ittended to prove the existence and nature ofthe RICO enterprise . . . . Such evidencewas also relevant to prove a pattern ofracketeering activity by each defendant.

954 F.2d at 843. Similarly, in United States v. Coonan, the

Second Circuit stated that evidence of extreme acts of violence

by members of a RICO enterprise “was certainly probative of the

existence of the charged enterprise.” 938 F.2d at 1561.

In sum, evidence of uncharged acts is routinely

admitted in racketeering trials in this Circuit. See United

States v. Thai, 29 F.3d 785, 812-13 (2d Cir.) (uncharged acts

admissible as evidence of “the existence and structure of the

20


[RICO] enterprise”; such acts are not “other” crimes evidence

governed by Fed. R. Evid. 404(b)), cert. denied, 513 U.S. 977

(1994); United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir.

1991) (evidence of uncharged acts of extreme violence by members

of a RICO enterprise “was certainly probative of the existence of

the charged enterprise”), cert. denied, 503 U.S. 941 (1992);

United States v. Kaplan, 886 F.2d 536, 543-44 (2d Cir. 1989)

(continuity of a pattern of activity may be established by

evidence of uncharged acts), cert. denied, 493 U.S. 1076 (1990);

United States v. Indelicato, 865 F.2d 1370, 1382-83 (2d Cir.) (en

banc) (where predicate acts are closely related in time, facts

external to those acts may be offered to establish continuity

requirement), cert. denied, 491 U.S. 907 (1989).

Thus, for example, even though robbery is not one of

the specifically charged predicate offenses of the RICO

conspiracy, the fact that Fotios and Ty Geas were involved in

robberies - particularly with Arillotta and other members or

associates of the Genovese Family – is admissible because it

tends to show the existence of the enterprise and the defendants’

affiliation with it. The same applies to the various acts of

violence each of the defendants was involved in, many of which

also were taken in specific furtherance of the conspiracy. Even

where specific proffered acts of violence or crimes arguably were

not committed specifically in furtherance of the enterprise, they

21


at least cemented the defendants’ criminal relationships with and

among each other by solidifying trust and co-dependence in

various criminal ventures. That kind of trust formed the

foundation necessary for the defendants to commit more heinous

crimes together for the enterprise, such as murder.

3. Background Of The Conspiracy And RelationshipsBetween Co-Conspirators

The evidence discussed above is also independently

admissible to “‘inform the jury of the background of the

conspiracy charged,’ ‘to complete the story of the crimes

charged,’ and to ‘help[] explain to the jury how the illegal

relationship between [participants in the crime] developed.’”

United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990)

(quoting United States v. Brennan, 798 F.2d 581, 589-90 (2d Cir.

1986), and United States v. Harris, 733 F.2d 994, 1006 (2d Cir.

1984)). See also Diaz, 176 F.3d at 79-80; United States v.

Inserra, 34 F.3d 83, 89 (2d Cir. 1994) (“evidence of other bad

acts may be admitted to provide the jury with the complete story

of the crimes charged by demonstrating the context of certain

events relevant to the charged offense”); United States v.

Lasanta, 978 F.2d 1300, 1307 (2d Cir. 1992) (evidence of other

crimes is admissible “to delineate the background details of a

conspiracy -- to ‘inform the jury of the background of the

conspiracy charged, to complete the story of the crimes charged,

and to help explain to the jury how the illegal relationship

22


between the participants in the crime developed.’”); Coonan, 938

F.2d at 1561 (“‘[T]he trial court may admit evidence that does

not directly establish an element of the offense charged, in

order to provide background for the events alleged in the

indictment.’”).

For example, Anthony Arillotta and Frank Roche are both

expected to testify about how they came to befriend Fotios and Ty

Geas, and how they learned to trust them. It would be impossible

for these witnesses to explain the trust that developed among

them without describing to the jury the various criminal

activities that they committed together and/or discussed among

themselves. It would similarly be unnatural (and misleading) for

various cooperating witnesses to describe their relationship with

Arthur Nigro without describing the various acts of violence and

extortion that he had committed and/or ordered on behalf of the

enterprise (including ones beyond those specifically charged in

the Indictment). Similarly, the evidence that Fotios Geas and

others assaulted Tranghese in 2006 is essential to explaining how

and why Tranghese’s relationship with Geas, and the Genovese

Family, effectively ended several years ago, and how Geas

continued to carry out the means and methods of the enterprise

through at least 2006.

23


4. Rule 403

The proffered evidence is directly probative of the

charged crimes, and will not be unduly prejudicial, confusing, or

wasteful for purposes of Fed. R. Evid. 403. First, as discussed

above, all of the proffered evidence goes directly to issues at

the heart of the Indictment: the fact that each of the defendants

conspired to participate in a racketeering enterprise; the

nature, structure, and membership of the enterprise; and the

relationships between the defendants and their co-conspirators.

Second, the vast bulk of the proffered evidence will be

presented through cooperating witness testimony, in the natural

course of describing the relationships among the defendants and

their co-conspirators; it will not unduly delay or confuse the

jury. Indeed, quite to the contrary, it would likely confuse the

jury if the cooperating witnesses were instructed not to testify

in a natural way about how their criminal relationships with the

defendants developed and progressed. That is because without the

proffered evidence as background, the jury would be left with

virtually no understanding of how or why the defendants and their

co-conspirators came to trust each other enough to commit murder

and other serious crimes together.

Third, none of the proffered evidence is unduly

prejudicial. In assessing the potential for undue prejudice

under Rule 403, the Court should consider whether the proffered

24


evidence of other acts is more or less inflammatory than the

charged crimes. In United States v. Williams, 205 F.3d 23, 33-34

(2d Cir. 2000), the Second Circuit found that there was no undue

prejudice where the evidence of certain prior acts was not more

serious than the specifically charged conduct. Similarly, in

United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1990), the

Second Circuit found that the danger of unfair prejudice is

lessened if “other acts” evidence involves crime of equal or less

seriousness than the charged crimes. Here, the proffered

evidence is clearly no more inflammatory than the specifically-

charged Racketeering Acts in Count Two and the freestanding

charges. The specifically-charged acts include two completed

murders, an attempted murder where the victim (Frank Dadabo) was

shot more than half-a-dozen times, and numerous extortions,

narcotics trafficking, loansharking, and gambling. None of the

proffered “other” evidence is as inflammatory as that - let alone

more inflammatory.

Finally, if necessary, the Court can further guard

against any potential undue prejudice by instructing the jury

about the proper and improper uses of the “other crimes”

evidence. Such an instruction serves as an appropriate “final

protection” against possible prejudice. See United States v.

Levy, 731 F.2d 997, 1002 (2d Cir. 1984). Juries are presumed to

25


follow judicial instructions. United States v. Salameh, 152 F.3d

88, 116 (2d Cir. 1998).

26


II. Motion to Admit Evidence of Defendants’ Prior Prison Terms

The Government further seeks an in limine ruling

permitting testimony and evidence regarding prior prison terms

served by each of the defendants. This evidence is necessary to

prove how the defendants’ relationships developed with other co-

conspirators, including the Government’s cooperating witnesses,

and to explain the whereabouts of the defendants during certain

relevant time periods.

For example, Anthony Arillotta first met Ty Geas when

both were incarcerated in Concord, Massachusetts, in around 1990.

During their incarceration in Concord, Fotios Geas came to visit

Ty Geas in prison, and formed a relationship with Arillotta, as

well. Similarly, Frank Roche is expected to testify that he met

Fotios Geas in prison in 2000, while both were incarcerated in

Shirley, Massachusetts. While incarcerated together, Roche and

Fotios Geas, and Arillotta and Ty Geas (and through Ty, Fotios

Geas), formed close bonds, grew to trust one another, and became

comfortable with plans to commit crimes together upon their

release from prison. Indeed, Arillotta and Fotios Geas committed

various crimes together throughout the 1990's and into the early

2000's. Moreover, after Ty Geas was released from a narcotics

prison sentence in or about 2001, and after Roche was released

from prison in approximately July 2002, Roche and Fotios and Ty

Geas began spending more and more time together, along with

27


Arillotta, and they went on, in essence, a violent crime spree

together in 2003. In each case, this evidence will be directly

relevant to explaining the narrative of the defendants’

relationships and their participation in the RICO enterprise.

The Government also intends to offer testimony and

evidence (as described above) that Fotios Geas was incarcerated

after being arrested for a 1996 truck theft that he committed

with Gary Westerman, and regarding which Westerman provided

information to law enforcement.

The fact of Fotios Geas’s most recent incarceration

will also become evident because the Government intends to offer

certain recorded prison calls Fotios Geas made to Ty Geas in

April 2010, after Fotios Geas had been arrested in the instant

case but before Ty Geas had been arrested. In those calls,

Fotios Geas and Ty Geas discussed, among other things, news

reports that the FBI was digging for Gary Westerman’s remains in

Agawam, Massachusetts. In these calls, which are plainly

admissible admissions as to each defendant, see Fed. R. Evid.

801(d)(2)(A), the Geases make a number of statements which the

Government intends to argue tend to show their culpability in the

Westerman murder.

Similarly, the Government intends to offer testimony

and evidence that Arthur Nigro was incarcerated as of at least

2008. Specifically, the Government intends to offer multiple

28


consensual recordings that a cooperating witness (John Bologna)

made of Arthur Nigro while Nigro was incarcerated at Fort Dix

during that time. In those recordings, Bologna and Nigro

discussed, among other things, what other Genovese Family members

and associates were doing while Nigro was incarcerated. In11

addition, Arillotta is expected to testify that his relationship

with the Genovese Family leadership in New York changed after he

was released from prison in approximately 2008 because, by that

point, Nigro was himself incarcerated. Thus, as with the

evidence of Fotios and Ty Geas’ prior prison terms, this evidence

is necessary quite simply to explain other key evidence and to

explain Nigro’s whereabouts during a significant, relevant time

period charged in the Indictment. 12

These recordings are admissible on several grounds. 11

First, they are admissible as admissions against Nigro. See Fed.R. Evid. 801(d)(2)(A). Second, they are admissible as co-conspirator statements made in furtherance of the conspiracy asto each of the defendants. See Fed. R. Evid. 801(d)(2)(E). Third, they are admissible on the non-hearsay ground ofestablishing not the truth of what was said but, simply, the factthat Nigro knew Fotios Geas and other members and associates ofthe enterprise based in Springfield, whom he discussed.

The Government will request and consent to a limiting12

instruction on admission of such evidence to inform the jury thatthe evidence is offered solely to show the relationships betweenthe parties and the whereabouts of the defendants at certaintimes, and prohibiting the jury from drawing any adversepropensity inference. See, e.g., United States v. Levy, 731 F.2dat 1002; United States v. Salameh, 152 F.3d at 116.

29


III. Motion to Admit Statements by Fotios Geas Regarding the Murder of Gary Westerman

The Government further seeks an in limine ruling to

admit testimony of admissions made by Fotios Geas regarding his

role in the murder of Gary Westerman, in which he also implicated

his brother Ty Geas.

A. Relevant Facts

The Government expects that Frank Roche will testify

that, in approximately February 2005, while Roche and Fotios Geas

were both incarcerated at MCI-Concord, Geas told Roche that he

(Fotios Geas), Ty Geas, and Anthony Arillota had murdered

Westerman. Fotios Geas told Roche that they had arranged to meet

Westerman under the ruse of committing a robbery together, and

that Fotios and Ty Geas had then proceeded to shoot and kill

Westerman.

B. Discussion

This conversation is plainly admissible against Fotios

Geas, as a non-hearsay admission. See Fed. R. Evid.

801(d)(2)(A).

The statement is also admissible against Ty Geas as

non-hearsay because it was a co-conspirator statement made in

furtherance of the conspiracy. Fed R. Evid. 801(d)(2)(E);

804(b)(2).

30


1. Co-Conspirator Statements

Rule 801(d)(2)(E) provides that an out-of-court

statement “is not hearsay if . . . [t]he statement is offered

against a party and is . . . a statement by a co-conspirator of a

party during the course and in furtherance of the conspiracy.”

Fed. R. Evid. 801(d)(2)(E). Hence, in order for a statement to

be admissible under this Rule, the District Court must find:

“(1) there was a conspiracy; (2) its members included the

declarant and the party against whom the statement is offered;

and (3) the statement was made [i] during the course of and [ii]

in furtherance of the conspiracy.” Glen v. Bartlett, 98 F.3d

721, 728 (2d Cir. 1996).

Here, there will be ample evidence that the RICO

conspiracy in which Fotios Geas, Ty Geas, and Frank Roche (along

with many others) participated was ongoing at the time of Geas’s

2005 admissions. See United States v. Arrington, 867 F.2d 122,

130 (2d Cir. 1989) (“Even where particular crimes have already

been committed, ‘the conspiracy does not necessarily end; it

continues until its aim has been achieved, it has been abandoned,

or otherwise terminated.’ The fact that some of the conspirators

have been indicted and incarcerated does not inexorably lead to

the conclusion that the conspiracy has been terminated.” (quoting

United States v. Rucker, 586 F.2d 899, 906 (2d Cir. 1978));

United States v. Persico, 832 F.2d 705, 715-16 (2d Cir. 1987)

31


(conspiracy continued after incarceration of some members).

Indeed, Geas was not arrested for the murder of Adolfo Bruno

until several years after he made the statements to Roche in

2005, and he continued to commit crimes on the street in the

interim (including, for example, the assault of Felix Tranghese

in August 2006).

Fotios Geas also made his admissions to Frank Roche in

furtherance of the RICO conspiracy. The Second Circuit has taken

an expansive view of the “in furtherance” requirement of Rule

801(d)(2)(E), particularly in RICO cases. See, e.g., United

States v. Russo, 302 F.3d 37 (2d Cir. 2002) (holding that

statements about individuals’ status within the RICO conspiracy

were “in furtherance” of the conspiracy). Statements between co-

conspirators that “provide reassurance, serve to maintain trust

and cohesiveness among them, or inform each other of the current

status of the conspiracy,” further the conspiracy. United States

v. Simmons, 923 F.2d 934, 945 (2d Cir. 1991); see also United

States v. Thai, 29 F.3d 785, 813 (2d Cir. 1994) (“statements

relating past events meet the in-furtherance test if they serve

some current purpose in the conspiracy, such as to promote[ ]

cohesiveness”) (internal quotations omitted); United States v.

Rahme, 813 F.2d 31, 36 (2d Cir. 1987) (statements “that apprise a

coconspirator of the progress of the conspiracy” further the

conspiracy); see also United States v. Rivera, 22 F.3d 430, 436

32


(2d Cir. 1994) (statements “designed to promote or facilitate

achievement of the goals of the conspiracy,” further the

conspiracy); United States v. SKW Metals & Alloys, Inc., 195 F.3d

83, 88 (2d Cir. 1999) (“[T]he statements need not be commands,

but are admissible if they ‘provide reassurance, or seek to

induce a coconspirator's assistance, or serve to foster trust and

cohesiveness, or inform each other as to the progress or status

of the conspiracy.’”) (citation omitted). Indeed, “[s]tatements

that describe past events are in furtherance of the conspiracy if

they are made . . . simply to keep coconspirators abreast of

current developments and problems facing the group.” United

States v. Jefferson, 215 F.3d 820, 824 (8th Cir. 2000) (quoting

United States v. Darden, 70 F.3d 1507, 1529 (8th Cir. 1995)); see

United States v. Flemmi, 402 F.3d 79, 95 (1st Cir. 2005) (stating

same). In fact, retrospective statements made as long as three

years after a specific violent act have been held by the Second

Circuit to be “in furtherance” of a larger conspiracy. See

United States v. Dessena, 260 F.3d 150, 157-58 (2d Cir. 2001)

(statements by co-conspirator at 1997 meeting of motorcycle gang,

ridiculing defendant for conduct of 1994 arson attempt against

rival gang, “could be understood as informing other

coconspirators about the status of the conflict between the two

gangs, and perhaps as an exhortation to avoid ridicule by doing

things right”).

33


That is precisely the case here. At the time Fotios

Geas admitted to Roche that he, along with Ty Geas and Anthony

Arillotta, had murdered Gary Westerman, Roche still was not

charged with the murder of Adolfo Bruno. Nor had the conspiracy

charged in the Count One ceased to operate or been terminated; in

fact, the charged conspiracy continued through February 2010, and

several of the co-conspirators continued to commit various acts

in furtherance of the conspiracy after this conversation in 2005.

As a result, Geas’ statement to Roche served to promote “trust”

and “cohesiveness” among the charged conspirators.

Moreover, there was an additional purpose underlying

Fotios Geas’ statement to Roche. Geas intended to ensure that

Roche, if ultimately charged, would resist any temptation to

cooperate. By telling Roche that he, Ty Geas, and Arillotta had

murdered Gary Westerman – someone they had long believed to be

cooperating - Fotios Geas was also relaying to Roche in no

uncertain terms the consequences of cooperating against them.

This served a critical purpose to the RICO enterprise: Keeping a

potential witness from cooperating against the enterprise and the

co-conspirators, which worked for another two years until Roche

decided to cooperate on the eve of his state trial.

2. There is No Confrontation Clause Problem

The admission of this testimony against Ty Geas will

not run afoul of Bruton v. United States, 391 U.S. 123 (1968) or

34


the Confrontation Clause because Fotios Geas’s statements to

Roche were not “testimonial,” as that term is defined in Crawford

v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 126

S. Ct. 2266 (2006). Specifically, in Crawford, “the Supreme

Court held that the Confrontation Clause prohibits the admission

of out-of-court ‘testimonial’ statements against a criminal

defendant, unless the declarant is unavailable and the defendant

had a prior opportunity to cross-examine the declarant.” United

States v. Williams, 506 F.3d 151, 155-56 (2d Cir. 2007) (citing

Crawford). Later, in Davis, the Supreme Court specifically

concluded that the Confrontation Clause applies only to

testimonial hearsay, and further defined the term “testimonial.”

See 126 S. Ct. at 2274. Thus, “[t]estimony . . . is typically a

solemn declaration or affirmation made for the purpose of

establishing or proving some fact. An accuser who makes a formal

statement to government officers bears testimony in a sense that

a person who makes a casual remark to an acquaintance does not.”

Id. Applying Davis, the Second Circuit has explained that “the

Confrontation Clause has no application to nontestimonial

statements.” United States v. Feliz, 467 F.3d 220, 231 (2d Cir.

2006); accord United States v. Williams, 506 F.3d at 155-56.

Accordingly, because Bruton protects against a violation of the

Confrontation Clause, it necessarily only applies to

“testimonial” statements of the kind outlined in Crawford and

35


Davis. See United States v. Gedinez, 280 Fed. Appx. 47, 50 (2d

Cir. 2008).

3. Statement Against Interest

Should the Court conclude that Fotios Geas’s statements

were not made in furtherance of the conspiracy, Frank Roche

should nevertheless be permitted to testify to Fotios Geas’s

statements in redacted form (without mention of Ty Geas’s name).

Such redacted testimony would still be admissible against Ty Geas

as a statement made against the penal interest of Fotios Geas,

who (presuming he opts not to testify) will be unavailable as a

witness at trial.

Under Rule 804(b)(3), a statement that would normally

be precluded as hearsay is admissible if the declarant is

unavailable as a witness at the time of trial and if it was “so

far contrary to the declarant’s pecuniary or propriety interest,

or so far tended to subject the declarant to civil or criminal

liability . . . that a reasonable person in the declarant’s

position would not have made the statement unless believing it to

be true.” That is plainly the case here: Fotios Geas admitted

his own involvement in Gary Westerman’s murder. At the time of

Fotios Geas’s admissions, Westerman was missing, and although law

enforcement had actively investigated the disappearance (and had

received an anonymous tip that Fotios Geas, Ty Geas, and

Arillotta had killed Westerman), no arrests had been made.

36


IV. Motion To Admit Statements Of Adolfo Bruno and Gary Westerman

The Government further moves for an in limine ruling to

admit certain statements made by Adolfo Bruno and Gary Westerman

– both of whom were later murdered by the defendants - to law

enforcement. The statements by these murder victims are

admissible not only for the fact that they were made (which

provided a motive to the defendants for their murders), but also

for the truth of the matters asserted (which tend to establish

the existence of the charged RICO enterprise and other relevant

facts).

A. Relevant Facts

1. Statements by Adolfo Bruno

On February 12, 2002, Adolfo Bruno spoke with Special

Agent Cliff Hedges of the FBI at the Red Rose Pizzeria in

Springfield, Massachusetts. Among other things, Bruno told

Special Agent Hedges that he did not care for Emilio Fusco, and

that Fusco had been “made” while Bruno was in jail. Bruno went

on to state that “It’s not like the old days Cliff, [Baba

Schibelli] should not have done this while I was away . . . Fusco

is a hothead, and I hear you have some bad tapes of him talking a

lot of shit. . . He is too young and needs to learn how to

respect people.” A copy of Special Agent Hedge’s report

summarizing this conversation has been produced in discovery.

37


2. Statements by Gary Westerman

Gary Westerman spoke with law enforcement on numerous

occasions regarding Fotios and Ty Geas, as well as other members

and associates of Organized Crime in the Springfield,

Massachusetts area. As explained above, after being arrested in

1996 for committing a truck theft, Gary Westerman agreed to

cooperate with law enforcement and signed a cooperation agreement

with the Massachusetts State Police. Westerman provided

meaningful intelligence at the time by confirming that Fotios

Geas had been part of the tractor trailer heist, and also by

providing a tip that Geas was driving in a car containing some of

the stolen merchandise (which led to Fotios Geas’s re-arrest on

June 20, 1996).

In 1997, Westerman was found in breach of his

cooperation agreement for having engaged in a check fraud scheme,

and he was ultimately sent to prison for several years.

In approximately Spring 2003, after he had been

released from prison, Westerman again reached out to the

Massachusetts State Police and offered to become an informant

once again. Thereafter, Westerman met with law enforcement

officers on numerous occasions and provided specific intelligence

information about crimes being committed by various individuals,

including Fotios and Ty Geas.

38


For example, on multiple occasions in 2003, Westerman

told law enforcement that Anthony Arillotta, Fotios Geas, and Ty

Geas were “making moves,” and seeking authorization from members

of organized crime in New York to “retire” Al Bruno.

In another example, on September 2, 2003, Westerman met

with a Massachusetts State Police Officer and told him about

events that had taken place in the prior three days involving the

Geases and Guiseppe Manzi. Specifically, Westerman told the

officer that Ty and Fotios Geas had an ongoing dispute with Manzi

and that Ty and Fotios Geas had robbed Manzi’s cousin out of

approximately $50,000. Westerman went on to explain that the

dispute had escalated in the prior week, and told the officer

details regarding Ty and Fotios Geas’s involvement in the August

29, 2003 shooting at the Civic Pub. He also explained to the

officer that the following day, an individual had shot

Arillotta’s home 21 times, and that Arillotta and Ty Geas were

actively seeking to retaliate against the person who they

believed had committed the shooting. Full copies of

Massachusetts State Police reports documenting these and other

debriefings with Westerman have been and/or will be provided to

the defense.

B. Applicable Law

The Confrontation Clause of the Sixth Amendment

provides that “[i]n all criminal prosecutions, the accused shall

39


enjoy the right ... to be confronted with the witnesses against

him.” U.S. Const. amend. VI. Accordingly, as a general matter,

the rules of hearsay preclude the Government from offering

statements such as the ones described above at a trial, for the

truth of the matters asserted therein, without calling the

declarants.

Nonetheless, there is a well-established exception that

applies to cases such as this to permit the admission of

statements of a victim who was killed to prevent his

communication of information to law enforcement. The reason is

simple: “‘[T]he law [will not] allow a person to take advantage

of his own wrong,’” United States v. Mastrangelo, 693 F.2d 269,

272 (2d Cir. 1982)(quoting Diaz v. United States, 223 U.S. 442,

458 (1912) (other internal quotation marks omitted)). As a

matter of “[s]imple equity” and “common sense,” the right to

confrontation is forfeited if the defendant has “wrongfully

procured the witnesses' silence through threats, actual violence

or murder,” United States v. Dhinsa, 243 F.3d 635, 651 (2d Cir.)

(internal quotation marks omitted), cert. denied, 534 U.S. 897

(2001). See, e.g., id. at 652 (“‘It is hard to imagine a form of

misconduct more extreme than the murder of a potential witness. .

. . We have no hesitation in finding, in league with all circuits

to have considered the matter, that a defendant who wrongfully

procures the absence of a witness or potential witness may not

40


assert confrontation rights as to that witness.’” (quoting United

States v. White, 116 F.3d 903, 911 (D.C. Cir.), cert. denied, 522

U.S. 960 (1997))); United States v. Miller, 116 F.3d 641, 667-68

(2d Cir. 1997), cert. denied, 524 U.S. 905 (1998); United States

v. Thai, 29 F.3d 785, 814 (2d Cir.), cert. denied, 513 U.S. 977

(1994); United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992);

Mastrangelo, 693 F.2d at 272-73; United States v. Cherry, 217

F.3d 811, 814-15 (10th Cir. 2000); Steele v. Taylor, 684 F.2d

1193, 1201-02 (6th Cir. 1982), cert. denied, 460 U.S. 1053

(1983); United States v. Carlson, 547 F.2d 1346, 1358-60 (8th

Cir. 1976), cert. denied, 431 U.S. 914 (1977). See also Crawford

v. Washington, 541 U.S. 36, 62 (2004) (“the rule of forfeiture by

wrongdoing (which we accept) extinguishes confrontation claims on

essentially equitable grounds”). United States v. Stewart, 485

F.3d 666, 672 (2d Cir. 2007) (“[a] defendant who wrongfully and

intentionally renders a declarant unavailable as a witness in any

proceeding forfeits the right to exclude ... the declarant's

statements at that proceeding and any subsequent proceeding.”).

This rule is codified in Federal Rule of Evidence

804(b)(6). Under the heading “Forfeiture by wrongdoing,” Rule

804(b)(6) provides that the hearsay rule does not require the

exclusion of “[a] statement offered against a party that has

engaged or acquiesced in wrongdoing that was intended to, and

did, procure the unavailability of the declarant as a witness.”

41


Fed. R. Evid. 804(b)(6). Obviously, the murder of a declarant

renders him unavailable.

Accordingly, the district court may admit hearsay

evidence as to statements by an unavailable declarant if it finds

by a preponderance of the evidence that (a) the “party against

whom the out-of-court statement is offered[ ] was involved in, or

responsible for, procuring the unavailability of the declarant

through knowledge, complicity, planning or in any other way,” and

(b) that party “acted with the intent of procuring the

declarant's unavailability as an actual or potential witness,”

Dhinsa, 243 F.3d at 653-54 (internal quotation marks omitted).

C. Discussion

Here, there will be ample evidence that both Bruno and

Westerman were murdered - at least in large part - to prevent the

communication of information to law enforcement. Thus, the

proffered statements by Bruno and Westerman are admissible for

their truth. Such admission presents no confrontation clause13

or hearsay problem, because, under settled Second Circuit law,

the defendants have forfeited their claims by causing their

murders. They are also plainly relevant to establishing the RICO

enterprise itself, the relationships among the defendants, and

The statements of Westerman will be offered only13

against Fotios and Ty Geas, as Nigro is not alleged to haveplayed a role in his murder.

42


various crimes that Fotios and Ty Geas were committing in

furtherance of the enterprise.

Even if they were not admissible for their truth,

however, these statements would be admissible simply for the fact

that they were made. Indeed, in each case, the fact of Bruno and

Westerman speaking to law enforcement was one of the key factors

leading the defendants to seek to kill them.

43


V. Motion to Permit Expert Testimony About Organized Crime

A. Relevant Facts

By letter dated December 27, 2010, the Government

notified defense counsel that it intends to call an organized

crime expert witness, John Carillo, to testify at trial. The

Government specified that the substance of Mr. Carillo’s

testimony will include:

(1) the names of the LCN families in New York(i.e., the Luchese, Gambino, Genovese, Bonnano(a/k/a “Massino”), and Colombo Families) andthe operations of those Families in New Yorkand other geographic areas includingMassachusetts, New England, and Florida; (2)the structure of the organized crime families(i.e., the Boss, Underboss, Consigliere,Capos, Soldiers, and associates); (3) therules and protocol governing the conduct oforganized crime families (e.g., how membersare introduced to one another, how money flowsamong the various LCN ranks, etc.); and (4)the purpose for which organized crime familiesexist and the illegal means by which theytypically generate income.

The Government also provided notice of Mr. Carillo’s expert

qualifications. In sum, Investigator Carillo has spent over two

decades working for the NYPD and other law enforcement agencies,

during which time he has focused primarily on investigating

organized crime in the New York City area.

B. Applicable Law

The admissibility of expert testimony is governed by Rule

702 of the Federal Rules of Evidence, which provides:

44


If scientific, technical, or other specializedknowledge will assist the trier of fact tounderstand the evidence or to determine a fact inissue, a witness qualified as an expert byknowledge, skill, experience, training, oreducation, may testify thereto in the form of anopinion or otherwise.

Fed. R. Evid. 702. Under this standard, expert testimony is

generally admissible if it will assist the trier of fact to

understand the evidence or to determine a fact in issue. See

United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994)

(“[E]xpert witnesses are often uniquely qualified in guiding the

trier of fact through a complicated morass of obscure terms and

concepts. Because of their specialized knowledge, their testimony

can be extremely valuable and probative . . . .). The decision

to admit expert testimony rests soundly with the discretion of

the trial court. See United States v. Schwartz, 924 F.2d 410,

425 (2d Cir. 1991).

The Second Circuit has, on numerous occasions, approved

of the admission of expert testimony in organized crime cases.

For example, in United States v. Locascio, 6 F.3d 924, 936 (2d

Cir. 1993), the Second Circuit considered the District Court’s

decision to allow an FBI agent to testify, as an expert witness,

“on the nature and function of organized crime families,

imparting the structure of such families and disclosing the

‘rules’ of La Cosa Nostra.” United States v. Locascio, 6 F.3d at

936. A year later, the Second Circuit re-affirmed the admission

45


of testimony “regarding the organization, structure and

terminology of organized crime families.” United States v.

Amuso, 21 F.3d 1251, 1263-64 (2d Cir. 1994). The Court cited

Locascio, and concluded, “[a]side from the probability that the

depiction of organized crime in movies and television is

misleading, the fact remains that the operational methods of

organized crime families are still beyond the knowledge of the

average citizen.” Id. at 1264.

More recently, in United States v. Matera, 489 F.3d 115

(2d Cir. 2007), the Second Circuit approved of the admission of

expert testimony regarding “the composition and structure of

organized crime families generally” and noted that “this Circuit

has approved the admission of expert testimony in organized crime

cases ‘to help explain the operation, structure, membership, and

terminology of organized crime families.’” Id. at 121 (collecting

cases).

In United States v. Mejia, 545 F.3d 179 (2d Cir. 2008),

the Second Circuit – while re-affirming the admissibility of

expert testimony in organized crime cases – placed certain

limitations on expert testimony by law enforcement agents more

generally. The Second Circuit in Mejia first recounted in detail

its own history of permitting expert witness testimony, including

in particular testimony relating to the structure and internal

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operating rules of organized crime families. Id. at 189-90

(collecting cases). The Mejia Court observed that:

Our decision to permit such expert testimonyreflects our understanding that, just as ananthropologist might be equipped by educationand fieldwork to testify to the cultural moresof a particular social group, law enforcementofficers may be equipped by experience andtraining to speak to the operation, symbols,jargon, and internal structure of criminalorganizations. Officers interact with membersof the organization, study its operations, andexchange information with other officers. Asa result, they are able to break through thegroup’s antipathy towards outsiders and gainvaluable knowledge about its parochialpractices and insular lexicon. Allowing lawenforcement officers to act as experts incases involving these oft-impenetrablecriminal organizations thus responds to thesame concerns that animated the enactment (andtheir members) are typically charged withviolating, such as [the racketeeringstatutes].

Id. at 190 (citations omitted). The Court further held that

“despite the utility of, and need for, expertise of this sort,

its use must be limited to those issues where sociological

knowledge is appropriate.” Id. The Court explained that

problems arise where:

that officer becomes, rather than asociologist describing the inner workings of aclosed community, a chronicler of the recentpast whose pronouncements on elements of thecharged offense serve as shortcuts to provingguilt. As the officer’s purported expertisenarrows from ‘organized crime’ to ‘thisparticular gang,’ from the meaning of ‘capo’to the criminality of the defendant, theofficer’s testimony becomes more central tothe case, more corroborative of the witnesses,

47


and more like a summary of the facts than anaide in understanding them.

Id. at 190-91. In short, problems arise where the expert’s area

of expertise “happens to be the defendant.” Id. at 191.

C. Discussion

The Government will offer Mr. Carillo’s testimony here

for precisely the purposes permitted by the Second Circuit in

Locascio, Amuso, and Matera: to explain to the jury “the

operation, structure, membership, and terminology of organized

crime families.’” Matera, 489 F.3d at 121. Further, Mr. Carillo

has routinely been permitted to testify on these topics not only

by this Court, in United States v. John Gotti, 08 Cr. 1220 (PKC),

but also by various judges in this District, including Judge

Buchwald in United States v. Angelo Prisco, 08 Cr. 885; Judge

Scheindlin in United States v. Angelo Nicosia, 07 Cr. 907; Judge

Wood and Judge Patterson in United States v. Ciro Perrone, et

al., 04 Cr. 774; and Judge Kaplan in United States v. Salvatore

Scala and Thomas Sassano, 04 Cr. 70.

Nor does Mr. Carillo’s proposed testimony run afoul of

the limitations set forth in Mejia, which identified “two

distinct ways in which the officer expert might stray from the

scope of his expertise.” 545 F.3d at 192 (citation omitted).

First, the expert might testify “about the meaning of

conversations in general, beyond the interpretation of code

48


words.” Id. (citations omitted). Second, “the expert might

interpret ambiguous slang terms based on knowledge gained through

involvement in the case, rather than by reference to the fixed

meaning of those terms either within the narcotics world or

within this particular conspiracy.” Id. The Government does not

intend to elicit either type of potentially problematic testimony

from Mr. Carillo.14

Nor does Mr. Carillo’s proposed testimony pose14

Confrontation Clause issues under Crawford v. Washington, 541U.S. 36 (2004). The Mejia Court held that where an expertwitness merely repeats out-of-court statements made by others fortheir truth, without applying expertise or any expert synthesis,the testimony raises Crawford concerns. Id. at 199. Bycontrast, expert testimony does not violate Crawford where theexpert applies his expertise to out-of-court statements and othersources, and synthesizes or analyzes that information, along withother information, in the form of an expert opinion. Id. at 199. Here, in keeping with Mejia and its predecessor decisions, theGovernment will elicit Carillo’s expert opinion based on all ofhis experience and learning. As the Mejia Court found proper,Mr. Carillo will rely on out-of-court statements as one of manybases for his expert opinion and testimony, but he will notrepeat those statements verbatim or present the statementsthemselves as his own testimony; rather, he will use thestatements as one of many bases for his expert opinion, analysis,and conclusions. Also, as discussed above, numerous judges inthis District have permitted Mr. Carillo to testify as an experton the same basis since Crawford.

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VI. Motion for Anonymous Jury

The Government respectfully moves for empanelment of an

anonymous jury. Specifically, the Government requests that the

Court order that all prospective jurors on the voir dire panel,

as well as the jurors and alternate jurors who are ultimately

selected for the petit jury, not to reveal their names,

addresses, or places of employment to one another, the parties,

or the Court.

A. Applicable Law

The Second Circuit has repeatedly upheld the use of

anonymous juries where there is reason to believe that the jury

needs protection and where the Court takes reasonable precautions

to minimize any adverse effect on the jurors’ opinion of the

defendants by, for example, conducting a thorough voir dire to

uncover any potential bias and giving the jury a plausible and

non-prejudicial reason for jury anonymity. See, e.g., United

States v. Quinones, 511 F.3d 289, 295-97 (2d Cir. 2007); Unites

States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir. 1995); United

States v. Wong, 40 F.3d 1347, 1376 (2d Cir. 1994); United States

v. Thai, 29 F.3d 785, 800-801 (2d Cir. 1994); United States v.

Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991); United States v.

Vario, 943 F.2d 236, 239 (2d Cir. 1991); United States v. Tutino,

883 F.2d 1125, 1132 (2d Cir. 1989).

Courts in this Circuit have identified three factors

that should be considered in determining whether empaneling an

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anonymous jury is appropriate, see United States v. Bellomo, 954

F. Supp. 630 (S.D.N.Y. 1997):

• First, the nature and seriousness of the charges,see Vario, 943 F.2d at 241 (using an anonymous jury isappropriate where the “trial evidence will depict apattern of violence by the defendants and [their]associates such as would cause a juror to reasonablyfear for his own safety”); United States v. Persico,832 F.2d 705, 717 (2d Cir. 1987) (upholding the use ofan anonymous jury based on “the violent acts alleged tohave been committed in the normal course of ColomboFamily business”);

• Second, the potential threat of corruption of thejudicial process, see Aulicino, 44 F.3d at 1116 (juryanonymity is appropriate where “the Government hasdemonstrated a defendant’s willingness to tamper withthe judicial process”); Vario, 943 F.2d at 240 (“Anobstruction of justice charge, particularly oneinvolving jury tampering, has always been a crucialfactor in our decisions regarding anonymous juries.”);

• Third, the expectation of publicity and mediacoverage, see Quinones, 511 F.3d at 296; Vario, 943F.2d at 240 (“[P]ublicity may militate in favor of ananonymous jury because it can enhance the possibilitythat jurors’ names would become public and thus exposethem to intimidation by defendants’ friends or enemies,or harassment by the public.”). The decision to utilize an anonymous jury is left to

the sound discretion of the District Court and is reviewed on

appeal only for an abuse of discretion, see Quinones, 511 F.3d at

295; Paccione, 949 F.2d at 1192.

B. Discussion

All three relevant factors weigh in favor of empaneling

an anonymous jury.

1. Nature and Seriousness of the Charges

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The defendants here are charged with the most serious

of offenses, principally multiple murders committed with and for

the Mafia. The Indictment charges the defendants, in various

combinations, with two completed murders (of Bruno and

Westerman), one attempted murder (of Dadabo), and one murder

conspiracy (of Santos). Even beyond the charged murders, the

Indictment charges the defendants with a string of extortions and

other crimes which – while certainly not as serious as murders –

are nonetheless violent and could, on their own, necessitate an

anonymous jury. See, e.g., United States v. Salvatore Scala, et

al., S1 04 Cr. 70 (LAK) (ordering anonymous jury and other

protective measures in case charging one mafia-related extortion

and tax evasion charges). Thus, the first relevant factor – the

nature and seriousness of the charged offenses – weighs in favor

of an anonymous jury.

2. Corruption of the Judicial Process

The Indictment charges all three defendants with

committing murder for the purpose of obstructing justice,

specifically the 2003 murder of Bruno. (Indictment ¶¶ 16(a), 25,

42). The Indictment also charges Fotios Geas and Ty Geas with

murdering a second witness, Westerman, to prevent his cooperation

and testimony. (Indictment ¶¶ 16(a), 26).

The Second Circuit has held that jury anonymity is

appropriate where “the Government has demonstrated a defendant’s

willingness to tamper with the judicial process.” Aulicino, 44

52


F.3d at 1116. Here, the defendants have demonstrated not only

the willingness but also the ability to tamper with the judicial

process in a most serious fashion, by killing someone they

believed to be a potential witness (or, in the case of Fotios

Geas and Ty Geas, by killing two such people). Although this

case does not involve allegations of jury tampering, the fact

that this case does charge obstruction of justice weighs in favor

of empaneling an anonymous jury. See Vario, 943 F.2d at 240 (“An

obstruction of justice charge, particularly one involving jury

tampering, has always been a crucial factor in our decisions

regarding anonymous jury.”).

3. Publicity

Even during the pre-trial stages, this case has

received substantial media attention. The internet search engine

Google.com reveals that there have already been several dozen

different articles published about the investigation and charges

in this case. To date, the case has been covered by media

outlets including the New York Post, the Boston Globe, the New

York Sun, and numerous internet websites and blogs, including the

Huffington Post, Masslive, and Ganglandnews. There is no reason

to expect this coverage to wane; if anything, coverage is likely

to intensify during the trial itself as more details become

publicly available about the defendants’ crimes. Thus, this

factor also weighs in favor of an anonymous jury.

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Conclusion

For all of the forgoing reasons, the Government’s

motions in limine should be granted.

Dated: New York, New YorkJanuary 7, 2011

Respectfully submitted,

PREET BHARARAUnited States Attorney

By: ____/s/________________________Mark LanpherElie HonigDaniel GoldmanAssistant United States AttorneysTel: (212) 637-2399/2474/2289Fax: (212) 637-0086

54


CERTIFICATE OF SERVICE

Mark Lanpher deposes and says that he is employed inthe Office of the United States Attorney for the SouthernDistrict of New York.

That on January 7, 2011, he caused to be served a copyof the foregoing Government’s Motions In Limine by ECF and e-mailon:

Murray Richman Law Offices of Murray Richman 2027 Williamsbridge Road, 3rd Floor Bronx , NY 10461 (718) 892-8588 Fax: (718) 518-0674 Email: [email protected]

Frederick H. CohnAttorney At Law61 Broadway, Suite 1601New York, NY 10006(212)768-1110Fax: 212 (267)-3024Email: [email protected]

Bobbi Sternheim156 Fifth Avenue – Suite 823New York, NY 10010212-243-1100Cell: 917-306-6666Fax: 888-587-4737Email: [email protected]

I declare under penalty of perjury that the foregoingis true and correct. 28 U.S.C. Section 1746.

_______/s/_________________Mark Lanpher

Executed on: January 7, 2011 New York, New York


mailto:[email protected]

mailto:[email protected]

government's motions in limine: fotios geas case

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