Ruling and Order — United States v. Trasacco (Dkt. 175, D. Conn.)

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A ruling and order by United States District Judge Omar A. Williams in United States of America v. John Trasacco, Criminal No. 3:22-CR-33 (OAW), in the U.S. District Court for the District of Connecticut, dated November 22, 2022 at Hartford. It rules on the defendant's motion in limine to preclude any reference to organized crime (ECF No. 168), which argues under Fed. R. Evid. 402 and 403 that such references are irrelevant and unfairly prejudicial in a wire fraud case. It records that at oral argument on November 21, 2022 the government stated that it had instructed witnesses not to mention organized crime but argued that evidence of intimidation should be admissible. The court denies the motion without prejudice and will address specific testimony as it arises at trial.

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Case 3:22-cr-00033-OAW Document 175 Filed 11/22/22 Page 1 of 3



                           UNITED STATES DISTRICT COURT
                             DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA                  :
                                          :
              v.                          :       Criminal No. 3:22-CR-33 (OAW)
                                          :
JOHN TRASACCO                             :

                                  RULING AND ORDER

       Defendant John Trasacco has filed a Motion to Preclude Any Reference to

Organized Crime (ECF No. 168). For the reasons stated herein, the court DENIES

without prejudice Defendant’s motion.

       In its motion in limine at ECF No. 168, Defendant John Trasacco moves the court

to preclude testimony (and other evidence) “concerning organized crime or any alleged

connection between Mr. Trasacco and organized crime”, arguing that it is irrelevant (citing

Fed. R. Evid. 402) and that its unfair prejudice would substantially outweigh any probative

value in its inclusion (citing Fed. R. Evid. 403). The defendant argues that such

references would play into stereotypes that prejudicially associate his Italian-American

heritage with violence and illegality in a manner irrelevant to the present allegations of

wire fraud (and conspiracy to commit the same).

       At oral argument on November 21, 2022, the government (Atty. Raymond F. Miller,

Esq.) represented that it instructed all witnesses not to mention organized crime, but

contended that intimidation tactics by Mr. Trasacco should be admissible as relevant to

his participation in the charged conspiracy, particularly insofar as his conduct relates to

Michael DiMassa (an anticipated government witness). The government also maintains

that Mr. Trasacco’s alleged intimidation speaks to Mr. DiMassa’s state of mind in

explaining the intricacies of Mr. DiMassa’s criminal conduct (such as why Mr. DiMassa



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might have taken certain actions that produced great financial benefit for Mr.

Trasacco). The court agrees, and finds such potential testimony to be relevant.

       With respect to the government’s statement that witnesses may testify regarding

their fear of Defendant based on statements he made to them, the court notes that the

admissibility of “threat testimony” is governed by “the balancing test mandated by Fed. R.

Evid. 403 . . . .” United States v. DeLillo, 620 F.2d 939, 946 (2d Cir. 1980). Such evidence

may be excluded “if its probative value is substantially outweighed by a danger of . . .

unfair prejudice [or] misleading the jury.” Fed. R. Evid. 403. “[P]rejudice is unfair only if

the evidence has ‘an undue tendency to suggest decision on an improper basis.’” Perry

v. Ethan Allen, Inc., 115 F.3d 143, 151 (2d Cir. 1997) (quoting Fed. R. Evid. 403 Advisory

Committee Notes (1972)). Such prejudice may result when evidence “tends to have

some adverse effect upon a defendant beyond tending to prove the fact or issue that

justified its admission into evidence,” United States v. Bayon, 838 F. App'x 618, 620 (2d

Cir.), cert. denied, 141 S. Ct. 2835 (2021) (citations omitted), or to “unfairly to excite

emotions against the defendant.” United States v. Massino, 546 F.3d 123, 133 (2d Cir.

2008) (citation omitted). In United States v. Tracy, 12 F.3d 1186 (2d Cir. 1993), the

Second Circuit found no error where the government offered evidence against the

defendant “to prove, inter alia, that he was a member of the conspiracy and played a role

that gave him sufficient familiarity with the operation.” Id. at 1195. In Tracy, Defendant’s

“threatening notations on 10 pages of the Complaint were plainly relevant for those

purposes and to confirm the testimony of the cooperating codefendants that Tracy's role

in the operation was that of enforcer.” Id. In ruling on any objections to any testimony

regarding threats or intimidation in this case, the court remains mindful of relevant



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precedent in applying Rule 403’s balancing test to exclude only testimony that carries the

requisite unfair prejudice.

       Insofar as the defense (Atty. Tracy Hayes, Esq.) argues that references to

organized crime unfairly would connect Mr. Trasacco to violence, the court denies as

moot the motion to preclude, upon the government’s representations that its witnesses

have been instructed not to reference organized crime. The denial of the instant motion

is without prejudice; the court will address any specific testimony or anticipated testimony

as it arises at trial. However, it is the court’s intention that the parties proceed with this

legal framework for the upcoming testimony.

       IT IS SO ORDERED at Hartford, Connecticut this 22nd day of November, 2022.

                                                                     /s/
                                                         Omar A. Williams
                                                         United States District Judge




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