United States District Court, Eastern District of Michigan, Southern Division
ORDER REGARDING VARIOUS MOTIONS
DENISE PAGE HOOD, UNITED STATES DISTRICT JUDGE
On February 13, 2013, the grand jury indicted Defendants Guiseppe D’Anna and Girolamo D’Anna on three counts under the Hobbs Act, 18 U.S.C. § 1951, for conspiracy and extortion. Defendants are charged with conspiring to commit extortion and interfering with the business interests of certain Victim 1 who owns and operates Noona’s Kitchen restaurant in Shelby Township, Michigan, and that such acts affected commerce. (Indictment, Doc. No. 3)
The underlying facts according to the Government is that beginning in the fall of 2009, Defendants owned and operated an Italian restaurant, called Tira Mi Su. Victim 1 began renovating a nearby Italian restaurant called Noona’s Kitchen. Defendants are alleged to have confronted Victim 1 and another individual and threatened their families if the competing restaurant was not closed. Defendant Guiseppe D’Anna allegedly used his family’s reputation as leaders of a Sicilian Costa Nostra or Mafia family in Terrasini, Italy, to intimidate Victim 1 and the victim’s family residing in Italy. Victim 1 was thereafter beaten with a baseball bat on April 28, 2011.
This matter is before the Court on various motions filed by the parties: 1) Motion for Bill of Particulars; 2) Motion for Discovery; and, 3) Motion to Dismiss the Indictment. Responses and replies have been filed. Hearings and conferences have been held in this matter.
A. Motion for Admission of Evidence Pursuant to Fed.R.Evid. 404(b) (Doc. No. 24)
The Government seeks to admit certain prior bad acts by Defendants under Rule 404(b) of the Rules of Evidence. These prior bad acts are purported prior threats made by Defendants in 1995 when an individual, Confidential Witness 1 (“CW-1"), was hired by Defendants. CW-1 left Defendants’ restaurant and worked for another Italian restaurant two blocks away, Café Italia. Defendants later approached CW-1 threatening CW-1 with a shotgun. Café Italia was thereafter sold to Defendants. Defendants then closed down the restaurant.
Defendants claim that they have no way of confirming the witness’ identity, his relationship to the complaining witness or any other way to challenge whether the prior bad act occurred. Defendants claim they have had no disclosure from the Government as to the identity of CW-1. They further claim that the evidence is more prejudicial than probative.
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Fed. R. Evid. 404(b). Courts have recognized the use of other crimes or other bad acts permissible as evidence at trial. United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1984). A three-step inquiry is used to determine the admissibility of 404(b) evidence: 1) whether sufficient evidence exists that the prior act occurred; 2) whether the “other act” is admissible for a proper purpose under Rule 404(b); and, 3) whether the “other acts” evidence is more prejudicial than probative under Rule 403. United States v. Poulsen, 655 F.3d 492, 508 (6th Cir. 2011).
As to the first step of the inquiry that the prior act occurred, Defendant Giuseppe D’Anna asserts in his response that he has no way of confirming the witness’ identity who made such an allegation 14 to 17 years ago. Defendant Giuseppe D’Anna seeks appropriate disclosures from the Government as to the witness’ identity so he can make a determination if there is sufficient evidence that the prior bad act occurred. It appears that evidence exists that the prior threats occurred. The Government will need to make a proffer of such evidence at trial prior to its introduction.
Addressing the second and third steps–the prior threats may be relevant to show motive, pattern, etc. And, if Defendants engage in such a pattern, then the prior threats are more probative and, even though prejudicial, outweigh any danger of unfair prejudice. The Court grants the Government’s motion if the Government makes a sufficient proffer at trial as to the witness’ identity, the specifics of the witness’ relationship with Defendants, where and when the alleged threats occurred, and whether the restaurant was in fact closed thereafter.
B. Motion for Bill of Particulars (Doc. No. 32)
Both Defendants move for a bill of particulars from the Government as to the Indictment in order to properly prepare for trial. They argue that the Indictment and/or current discovery do not provide specifics as to when, where and how the allegations occurred so that Defendants are able to defend the allegations at trial.
Specifically, Defendants seek the following:
1. the factual basis of Mr. Joe D’Anna’s interference with ...