Petition — Provenzano v. United States
Supreme Court brief1980
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i IN THE
Supreme Court of the United States
. ot
No.: — (@y f ) ie ] G $2
ANTHONY PROVENZANO,
Petitioner,
-against-
UNITED STATES OF AMERICA,
Respondent.
a,
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
MAURICE EDELBAUM
230 Park Avenue
New York, New York 10017
(212) 732-1300
JAY GOLDBERG
1301 Avenue of the Americas
New York, New York 10019
(212) 586-1433
Attorneys for Petitioner Anthony Provenzano
Of Counsel
Gerald L. Shargel
1370 Avenue of the Americas
New York, New York 10019
John Pollok
Hoffman Pollok Mass & Gasthalter
477 Madison Avenue
New York, New York 10022
April 16, 1980
CHA RODAK, IR.,.
, October Term, 1979 [Cuictact 50 K, JR. OL
rt, Ue
APR 16 1980
i
Table of Contents
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Constitutional Provision Involved ..............
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Reasons for Granting the Writ.................
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Table of Authorities
Cases:
Alderman v. United States,
Pe My POI D as os caval cv ew oe be vex 9
Brady v. Maryland,
Bie WC CEM? cake sces ra a
Johnson v. Zerbst,
Pe I CEOS 65 6 o's 0's Chow cu cwokewes 9
Napue Vv. Illinois,
PRED seek oe chy ek vac can. 8
United States v. Agurs,
eR SR OI Sie nS C's bru es wh * i Be
United States v. Geaney,
Sti F.a0 tiie (a0 Cir, 1969} . 6 deck. 4
United States v. Provenzano,
440 F.Supp. 561 (S.D.N.Y. 1977) .......... 2,4
United States Constitution:
hE ee RS NARS RM RARER 2
Statutes:
We As EP IROD, ive nes Ga Lowe Soke eae 2:0
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*
IN THE
Supreme Court of the United States
October Term, 1979
No.
ANTHONY PROVENZANO,
Petitioner,
-against-
UNITED STATES OF AMERICA,
Respondent.
(LEONA EO ET TR PR ET PP aE SAR,
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
OSE NCEE TER RRL ENR SARE ED, CESS AOE BESTA
The Petitioner Anthony Provenzano respectfully
prays that a writ of certiorari issue to review the judg-
ment and opinion of the United States Court of Appeals
for the Second Circuit entered in this proceeding on
January 16, 1980.
Opinion Below
The opinion of the Court of Appeals, not yet
reported, appears in the appendix hereto. Two opinions
of the District Court for the Southern District of New
York relevant to the issue raised herein also appear
in the appendix.
2
Jurisdiction
The judgment of the Court of Appeals for the
Second Circuit was entered on January 16, 1980. A
timely petition for rehearing and hearing en banc was
denied on March 17, 1980 and this petition for certiorari
was filed within thirty days of that date. This Court’s
jurisdiction is invoked under 28 U.S.C. § 1254(1).
Questions Presented
1. Whether United States v. Agurs, 427 U.S. 97
(1976) and the due process clause permit a court to
make a retrospective determination that the Govern-
ment’s suppression of evidence producible under Brady
v. Maryland, was excusable because it would not have
been used by the defense?
2. Whether the retrospective determination by
both the District Court and the Court of Appeals that
suppressed Brady material would not have been used
by the defense has created an unconstitutional usurption
of the defense function in criminal trials?
Constitutional Provision Involved
Amendment V. Due Process of Law
* * * nor be deprived of life, liberty, or property,
without due process of law; * * *
Statement of the Case
This criminal case has had a complicated history.
The complication was caused in part by dismissal of
two earlier indictments which charged essentially the
same offense. United States v. Provenzano, 440 F.Supp.
561 (S.D.N.Y. 1977). The post-cenviction phase of
this case was also made complicated by a multi-tiered
Brady claim charging that the prosecution violated
Petitioner’s right to due process by suppression of
at A ak ae
3
evidence which was constitutionally producible. It is
the latter issue, the Brady claim, on which this petition
is grounded.
Sandwiched in between the extensive pre- and
post-trial litigation was the trial itself. This one count
conspiracy indictment charged that Provenzano had
agreed with others to pay a kickback to a union trustee
in connection with a teamster pension fund mortgage
loan to a New York hotel corporation. Title 18 United
States Code Section 1954. Even though the courts
below found evidence of Provenzano’s guilt to be legally
sufficient, this under any analysis was a very close
case. The closeness of the case is noteworthy in evaluating
the Circuit Court’s disposition of Provenzano’s Brady
claim.
In large part the Government prosecuted here on
the testimony of a single witness, Herman Goldfarb.
Goldfarb, an undercover informant and agent provocator,
testified to an elaborate scheme to obtain the mortgage
loan for borrowers who would pay “points” or a per-
centage of the loan which would be distributed among
the conspirators with a portion allegedly going to the
trustee who played a role in approving the loan. Cor-
roborated by recordings surreptitiously made by him,
Goldfarb recounted a vast number of meetings at which
the mortgage deal and the concomitant payment of
“points” was planned and discussed.
But all of Goldfarb’s testimony and all the Govern-
ment’s recordings could not, standing alone, have
convicted Provenzano. The only non-hearsay inde-
pendent proof of Provenzano’s involvement was what he,
Provenzano, allegedly said during the single occasion
on which he met with the alleged conspirators. Because
Goldfarb, who met Provenzano only this one time,
was unable to identify Provenzano’s voice on the tape,
his testimony could not establish that Provenzano had
4
uttered a crucially important sentence which, if attrib-
utable to him, could have arguably shown knowledge
and participation. As one district judge stated in dis-
missing an earlier indictment:
In view of Goldfarb’s statements in this one
witness identification case, it is hard for the
court to see how at trial a reasonable juror could
find that the government had proved its case
beyond a reasonable doubt. United States v.
Provenzano, 440 F.Supp. 561, 566.
In order to fill the gap in its proof the Government
called a witness named Ralph Picardo, who, after
expressing familiarity with Provenzano’s voice, iden-
tified him as the person whose own words supplied
the necessary proof aliunde. United States v. Geaney,
417 F.2d 1116 (2d Cir. 1969). As such, Picardo became
an absolutely indispensable feature of the Government’s
case against Provenzano. As would later t: stated
by the district court judge:
First of all, I agree that Picardo was an important
witness, he wasn’t somebody who was unimportant;
no doubt about that.
I don’t know the government’s tactics, but
perhaps what happened before Judge Bonsel
where they only had the tape, you may not have
had a trial, so I can only find that Picardo was
an important witness...(A II 1088-89)*
* Before the Second Circuit Court of Appeals rendered its
decision on January 16, 1980, the case was remanded for the limited
purpose of allowing Petitioner to present additional newly discovered
evidence to the district court. For this reason a supplemental record
was transmitted to the Court of Appeals and a supplemental appendix
was filed, denoted by “A II”. The original appendix will be referred
to as “A I”. These appendices are on file in the United States Court
of Appeals for the Second Circuit.
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5
Thus it can be seen that Ralph Picardo’s “credi-
bility” or “reliability” was very much an issue in this
case.
The Brady Violation.
When Picardo was called as a witness the Govern-
ment made a mid-trial Brady disclosure. The Government
attorney told the defense that Picardo had been placed
in a witness relocation program and that the Govern-
ment “would help assist him in obtaining a job.” Secondly,
the Government revealed that Picardo had been con-
victed of murder but that in May of 1977 the murder
conviction was reversed by a New Jersey intermediate
appellate court. (A I 1022-24) Although the defense
did not know that Picardo would appear as a witness,
in pre-trial motions a specific request was made for
“ _ .a statement of all inducements, promises, payments,
or other considerations given or made to such persons
by or at the request of the Government or of Govern-
ment agents, prior to, during or after the instant investi-
gation.” Although this request was specifically directed
“but not limited to” Herman Goldfarb, the request
was broadened in the memorandum submitted in sup-
port of the motion.
From the already available facts with respect
to the nature and conduct of this investigation
and of the individuals who executed the investi-
gation, it is more than likely that the case will
bristle with impeachment issues. It is respectfully
submitted that this court should order the govern-
ment to immediately gather all such impeach-
ment evidence.
x * * *
6
The defense wishes to leave no room for inad-
vertence in the present case. The government
is placed on full notice that the defense requests
and expects to receive every item which will be
of value to the defense in its effort to impeach
the prosecution witnesses or the integrity of
other prosecution evidence. (Memo, A 181-182)
On the basis of what the government did turn over
the defense chose not to cross-examine Picardo. This
did not mean however that Picardo’s credibility was
not an issue at trial. Defense counsel, on summation,
argued:
I'm going to show you a little later why I didn’t
ask Mr. Picardo a single question. It was because
Mr. Picardo who demonstrated his own answer, one
answer that he gave on direct examination that
he is going to prove that he, the pinch hitter
brought in by Mr. Frankel, the government, the
pinch hitter, to prove that it was my client’s
voice that said something, and I will show you
where he lied, lied through his teeth about some-
thing, trying to put the extra zinger into Mr.
Provenzano. (A I'1192)
After the guilty verdict was returned, but before
sentence, Provenzano filed a motion for a new trial
F.R.C.P. Rule 33 claiming that the Government had
withheld Brady material and thus committed a due
process violation. By the time this motion was argued
it was the defense claim that the Government had with-
held five separate yet highly significant pieces of infor-
mation. These were: (1) The Government obtained
Picardo’s release from state prison; (2) the Government
aided Picardo in obtaining bail pending appeal of the
murder conviction; (3) the Government wrote a letter
to the State Appellate Clerk to aid Picardo concerning
his right to appeal that conviction; (4) the Government
SP A TRIN TSR ONE ERE TT mW eM dk
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7
prevented New Jersey from retrying Picardo when his
murder conviction was reversed upon appeal; (5) the
Government obtained the dismissal of state criminal
larceny charges pending against Picardo.
In its first Opinion (Appendix p. 1A) the District
Court denied the motion because in the case of the
first three items counsel would not have used it and in
the case of the latter two, because the charges were
too speculative. It was later developed however that
these Brady claims represented only the tip of a rather
formidable iceberg. Although the Government vehemently
denied making any promises to Picardo relative to
his New Jersey murder case (which had not simply
been reversed but rather reversed and remanded for
a new trial) it was found that Picardo was told by
“authorities” that a re-trial was “unlikely”. (A II 752)
But this was not all. It was also discovered that the
Government withheld: (1) Government promises to
Picardo of executive clemency if he were convicted
again on the reversed murder charge; (2) Promises of
immunity to Picardo in return for his cooperation with
New Jersey authorities; (3) The fact that Picardo escaped
from a Maine prison facility and was not prosecuted;
(4) Picardo’s history of prior criminal conduct; (5) Con-
flicting statements made by Picardo to Government
officials concerning Provenzano activities; (6) Dis-
cussions by Picardo about illegal methods of over-
turning his own murder conviction; and (7) Attempts
by Picardo to tamper with a jury in his own criminal
case.
The Circuit Court of Appeals, in affirming the
conviction, “assumed arguendo” that all of the material
sought was the subject of specific requests and properly
producible by the Government. United States v. Agurs,
427 U.S. 97 (1976). Nevertheless, the Circuit Court
affirmed the District Court’s orders twice denying
Petitioner’s new trial motion.
8
Reasons for Granting the Writ
Although recognizing that “courts should not
lightly infer that undisclosed Brady material would
not have been used by the defense”, the Circuit Court
‘has apparently struck new ground in excusing the
Government’s failure to disclose evidence “favorable
to the accused” within the meaning of Brady v. Maryland,
373 U.S. 83 (1963) and Napue v. Illinois, 363 U.S. 264
(1959).
The record in this case clearly establishes a violation
of the constitutional principal announced in Brady.
With the Brady violation established, the issue to be
determined is whether the Government’s withholding
of the evidence in question requires a new trial. In other
words what was the effect of this non-disclosure under
the guidelines set forth in United States v. Agurs, 427
U.S. 97 (1976). Since the Circuit Court assumed arguendo
“that all of the material sought by the defense was the
subject of specific requests for production and was
properly producible by the Government”, the question
is whether there was a reasonable likelihood that the
undisclosed evidence would have affected the outcome
of the trial. The Circuit Court concluded that it would
not have. Slip Op. p. 974. And the conclusion that it
would not have turns on the rather unorthodox finding
that the evidence would not have affected the outcome
of the trial simply because it would not have been used.
We reached this conclusion because we are satis-
fied that the defense never would have used
this undisclosed evidence to impeach Picardo.
Slip Op. p. 974.
Petitioner argues that if he were constitutionally
entitled to this material, a fact which the Circuit Court
acknowledges, then he was constitutionally entitled
to have the opportunity to decide whether or not this
9
material would be used. As argued on appeal this
right was as constitutionally important as the right
to the material itself. The net effect of the rulings by
both the District Court and this Court was that defense
counsel waived cross-examination and no amount
of additional impeachment evidence would have caused
counsel to regret that waiver. But waiver of a consti-
tutional right, i.e., cross-examination and thus con-
frontation, must be knowing and intelligent. Fundamental
constitutional rights are presumed not waived unless
knowingly and intentionally relinquished. Johnson v.
Zerbst, 304 U.S. 458 (1938). It has long been understood
that it is for the defense to assess whether any value
lies in evidence available to it. Alderman v. United
States, 394 U.S. 165 (1969).
In this case Petitioner has repeatedly urged that
if the withheld material had been produced, cross-
examination of Picardo would have followed. But
even more important than this assertion is the argument
that counsel was constitutionally entitled to make
that decision. An Agurs analysis of the withheld evi-
dence impliedly required an assumption that the
evidence would have been used. With this assumption
the only question is the impact the evidence would
have had on the trial. For a reviewing court to attempt
to unravel the trial in order to express retrospective
opinions about defense counsel’s tactics would work
an unfair usurption of the defense function. For this
reason an Agurs analysis of a clear and apparent
Brady violation requires, indeed, always requires,
the assumption that the evidence would have been
used.
10
Conclusion
For these reasons a writ of certiorari should issue
to review the judgment and opinion of the Second
Circuit.
MAURICE EDELBAUM
230 Park Avenue
New York, New York
JAY GOLDBERG
1301 Avenue of the Americas
New York, New York 10019
Of Counsel
GERALD L. SHARGEL
1370 Avenue of the Americas
New York, New York 10019
JOHN POLLOK
Hoffman Pollok Mass & Gasthalter
477 Madison Avenue
New York, New York 10022
April 16, 1980
Gi Sp IE er ek we
APPENDICES
7 ne
la
Appendix A
Opinion of United States District Court
Dated June 22, 1978
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
77 Cr. 889
UNITED STATES OF AMERICA,
-against-
ANTHONY PROVENZANO, a/k/a “Tony Pro,”
and ANTHONY BENTRO,
Defendants.
METZNER, D.J.:
Defendants move pursuant to Fed. R. Crim. P. 33
for a new trial on the ground that the prosecutor with-
held evidence to which the defendants were entitled
under Brady v. Maryland, 373 U.S. 83 (1963), and
18 U.S.C. § 3500. They also seek discovery in connection
with the motion. The government moves to quash a
subpoena already served upon them by defendant
Provenzano.
Defendants were found guilty by a jury of con-
spiracy to pay a kickback to a labor union official in
violation of 18 U.S.C. § 371. A major government
witness was Ralph Picardo, a longtime former associate
of defendant Provenzano. Picardo identified both
defendants’ voices on a tape recording of a meeting of
the co-conspirators held on July 11, 1974.
Just before Picardo testified, the government
turned over Brady and 3500 material to defense counsel,
and the trial was adjourned for three-quarters of an
hour to give counsel adequate time to look over the
material before Picardo took the stand.
2a
Appendix A
Opinion of United States District Court
Dated June 22, 1978
The 3500 material consisted of Picardo’s grand
jury testimony relating to the instant indictment. The
Brady material included Picardo’s criminal record,
which contained an entry indicating that he entered
New Jersey state prison on May 2, 1975, to begin serving
a 15-20 year sentence for a murder conviction. Also
provided to counsel was a listing of disbursements
made to Picardo under the federal witness protection
program during the period of December 1975 to March
1978. The prosecutor informed counsel that “[{Picardo]
was taken into the Government relocation program
sometime in 1975, at which time it was agreed that he
would be paid subsistence . . . and that he would be
relocated ... .” Tr. at 534. Thus, defendants were in-
formed that Picardo was in the witness protection
program at a period subsequent to his entering state
prison.
Neither defendant chose to cross-examine Picardo.
On this motion, defendants claim that the govern-
ment failed to meet its 3500 obligation by not turning
over testimony Picardo gave before an earlier grand
jury which was investigating an unrelated charge against
Provenzano. The court has carefully examined the
minutes of that grand jury testimony in camera. There
is absolutely nothing therein regarding Picardo’s relation-
ship with Provenzano which is not also contained in
the grand jury minutes from this indictment. Therefore,
defendants were in no way prejudiced by not receiving
the minutes of the earlier grand jury.
Regarding Brady material, defendants make the
following five claims of undisclosed benefits that were
allegedly provided to Picardo in return for his testi-
fying:
2 ON er
3a
Appendix A
Opinion of United States District Court
Dated June 22, 1978
1. The government obtained Picardo’s release
from state prison.
2. The government aided Picardo in obtaining
bail pending appeal of the murder conviction.
3. The government wrote a letter to the state
appellate clerk to aid Picardo in preserving his
right to appeal that conviction.
4. The government prevented New Jersey from
retrying Picardo when his murder conviction was
reversed upon appeal.
5. The government obtained the dismissal of
state criminal larceny charges pending against
Picardo.
Addressing claims | through 3, I will assume for
the purpose of this motion that the defendants made
specific Brady requests during pretrial discovery. Where
a specific Brady request is made, a new trial must be
granted if the undisclosed evidence could have affected
the trial’s outcome. United States v. Agurs, 427 U.S.
97 (1976).
Under the Agurs test, defendants are not entitled
to a new trial. It is abundantly clear from the record
that evidence of intervention by the government regard-
ing the state murder prosecution would not have prompted
cross-examination by defendants. As Provenzano’s
counsel stated in his memorandum of law accompanying
this motion:
“As any skilled trial lawyer knows, cross-
examination on [Picardo’s entry into the witness
protection program] was fraught with danger.
Whether his fear was warranted or not, the wit-
ness would then undoubtedly testify that he was
placed in such a program because of fear of
retaliation.”
4a
Appendix A
Opinion of United States District Court
Dated June 22, 1978
The government’s answering affidavits establish
that all the actions cited by defendants as evidence of
the benefits alleged in 1 through 3, supra, were taken
in the course of the government’s supervision of Picardo
under the witness protection program. Thus, for example,
defendants appended as an exhibit to their motion an
affidavit by an inspector of the United States Marshal’s
Service submitted to the New Jersey court, which in-
formed the court that Picardo was in the witness program
and requested that any bail arrangements include a
provision that Picardo comply with the requirements
of the program.
If the defendants had cross-examined Picardo
regarding these actions, | would have permitted the
government to elicit testimony on redirect to show
the complete agreement and Picardo’s entry into the
witness program and the reasons therefor.
Although Bentro’s counsel belatedly makes the
argument that Picardo would have no reason to fear
Bentro and therefore Bentro could have cross-examined
in this area with impunity, it was manifest to the court
that Bentro’s counsel made a trial tactic decision that
this was an area to be avoided. As noted above, he
took no advantage of the impeachment opportunity
provided by the Brady material he received.
With regard to defendants’ fourth claim that the
government has refused to make Picardo available
to New Jersey authorities for retrial on the murder
charges, they have failed to provide any basis for this
contention beyond purely speculative conjecture in a
newspaper article. Defendants are therefore not en-
titled to a hearing on this claim. .
Sa
Appendix A
Opinion of United States District Court
Dated June 22, 1978
Finally, with regard to the fifth claim, the New
Jersey Assistant Prosecutor’s motion to dismiss the
larceny charges, which is attached to the affidavit of
Richard Gregorie on this motion, establishes beyond
doubt that the state had ample grounds for dismissing
those charges and that it did not do so in satisfaction
of any request by the federal authorities.
Accordingly, the defendants’ motion for a new
trial is denied, as is their request for discovery, which
would constitute an unwarranted fishing expedition.
The government’s motion to quash the subpoena is
granted.
So ordered.
Dated: /s/ Charles M. Metzner
New York, N.Y. U.S.D.J.
June 22, 1978
6a
Opinion of United States District Court
Dated June 27, 1979
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
77 Civ. 889
(CMM)
UNITED STATES OF AMERICA,
-against-
ANTHONY PROVENZANO and
ANTHONY BENTRO,
Defendants.
METZNER, D.J.:
Defendants Provenzano and Bentro move for an
order pursuant to Fed. R. Crim. P. 33 granting defendants
a new trial upon the ground that the government sup-
pressed evidence favorable to them in violation of
Brady v. Maryland, 373 U.S. 83 (1963). This is the
second motion seeking this relief.
The defendants were found guilty by a jury on
March 25, 1978, after a seven-day trial. Their first
motion for a new trial based on a claim of suppression
of evidence in violation of Brady was finally submitted
to the court by the defendants on May 31, 1978. This
motion was denied in an opinion dated June 22, 1978.
I see no reason to disturb the original findings based
on the record before the court at that time.
The present motion refers to FBI reports and
other documents, including the transcript of Picardo’s
testimony in a New Jersey trial a few months ago, which
were obtained after the disposition of the first motion.
The question is whether the availability of this material
calls for a result different from the first determination.
7a
Appendix B
Opinion of United States District Court
Dated June 27, 1979
In Brady the Court said (373 U.S. at 87):
“We now hold that the suppression by the prose-
cution of evidence favorable to an accused upon
request violates due process where the evidence
is material either to guilt or to punishment, irre-
spective of the good faith or bad faith of the prose-
cution.”
The court does not question the good faith of the prose-
cutor in his efforts to obtain all material relating to
Picardo.
The meaning of the word “material” as used in
Brady was explained by the Court in United States v.
Agurs, 427 U.S. 97 (1976), when it said at 104:
“A fair analysis of the holding in Brady indicates
that implicit in the requirement of materiality
is a concern that the suppressed evidence might
have affected the outcome of the trial.”
The Court went on to describe how a trial court
should determine materiality. When a showing of non-
disclosure is brought to the attention of the court after
trial, it must be weighed to determine whether the
defendant has been deprived of his right to due process.
The mere fact that the reports might have affected the
outcome of the trial does not establish materiality in
the constitutional sense. However, the defendant need
not satisfy the court that the newly discovered evidence
properly would have resulted in an acquittal if it had
been available at the trial. Finally, the Court said at
112-13:
The proper standard of materiality must reflect
our overriding concern with the justice of the find-
ing of guilt. Such a finding is permissible only if
supported by evidence establishing guilt beyond
8a
Appendix B
Opinion of United States District Court
Dated June 27, 1979
a reasonable doubt. It necessarily follows that
if the omitted evidence creates a reasonable doubt
that did not otherwise exist, constitutional error
has been committed. This means that the omission
must be evaluated in the context of the entire
record. If there is no reasonable doubt about guilt
whether or not the additional evidence is considered,
there is no justification for a new trial. On the
other hand, if the verdict is already of questionable
validity, additional evidence of relatively minor
importance might be sufficient to create a reason-
able doubt.” (Footnotes omitted.)
We now turn to review the mass of papers submitted
on the motion, after first having heard oral argument
by counsel.
Picardo’s conviction for murder in New Jersey
had been reversed and remanded nearly a year before
the beginning of the trial in this court in March 1978.
Even though the reversal is found in an unreported
opinion of the court, it is inconceivable to this court
that Provenzano who lived in New Jersey, and whose
base of operations was in New Jersey at the head of a
powerful Teamster local, did not know of this fact. It
also appears from some of the material submitted in
support of the motion that Provenzano and Picardo
had more than a nodding acquaintance which I will
discuss later on.
Next we have the flat assertion by defendants that
the United States Government made a promise to
Picardo that he would not be retried on the murder
charge. Counsel relies on item 4 of the “Statement of
Understanding Re-Ralph Picardo” for this accusation.
That statement says:
—
9a
Appendix B
Opinion of United States District Court
Dated June 27, 1979
“Picardo, who has also agreed to cooperate
with the New Jersey state authorities has been
told by the authorities that a new trial is unlikely.”
The reference to “authorities” is clearly to the state
authorities and not to the federal authorities. Further-
more, there was no promise that there would not be a
new trial, merely a statement that such a trial would
be unlikely. It appears that the state legal authorities
believed that the conviction would be reversed on appeal,
and for the same reasons believed that a new trial would
result in an acquittal.
On March 28, 1979, Jeffrey Speiser, an attorney
with the Department of Justice, Organized Crime and
Racketeering Section, attached to the Newark Strike
Force, sent a letter to the attorneys for Provenzano,
who was a defendant in a pending criminal indictment
in the District Court of New Jersey. This was a year
after the trial in this court, and at a time when Speiser
had just joined the Newark operation. The letter states
that Picardo had been promised that when he completed
testifying in all cases in which he was potentially a
government witness, “the government would make
known to any parole board the extent of Mr. Picardo’s
cooperation and would recommend that he would
receive a parole, or if Mr. Picardo chose to file a petition
for clemency, the government would join in that petition.”
The experienced counsel who represented the
defendants on this trial know the usual boiler plate
words used to express the promises made to criminals
and accomplices who testify against defendants on
trial. It is general in tone and not as specific as that used
by Speiser, but states that the witness’ cooperation
will be made known to the proper authorities. Counsel
10a
Appendix B
Opinion of United States District Court
Dated June 27, 1979
could have pressed for details if they so desired during
the discussion which took place before Picardo testi-
fied (Tr. 534-553), but they did not do so.
The Assistant United States Attorney has stated
under oath, and I see no reason to disbelieve him, that
in the number of conferences he had with Picardo before
he testified in this case, he specifically asked Picardo
on at least five occasions to detail the promises made
to him by the government. Among other things Picardo
replied in general terms that the government had promised
to make his cooperation known to all authorities to
whom Picardo asked the information be given.
Specifically, Picardo said that no promises were made
to him regarding a possible retrial of the murder indict-
ment, simply because no one would lift a finger to help
him in this regard. The agents and attorneys who were
working with Picardo on other matters all confirmed
that no promise of any help regarding an application
for parole had ever been made to Picardo. This specific
reference first appears as the result of Picardo making
the statement in connection with the preparation for
the trial in New Jersey which occurred a year after the
trial in this court.
Counsel have urged that the court must view two
areas of concern to them - favors given to Picardo,
and Picardo’s motive for testifying against them. It
appears to the court that the two are intertwined since
the favor supplies the motive. Here the real claim is
that favors were offered Picardo by the government
in the murder case, but the government “obscured the
true facts by leading defense counsel to believe that there
was absolutely no relation between the murder case and
the witness’ cooperation (T. 534-36).”
lla
Appendix B
Opinion of United States District Court
Dated June 27, 1979
There is nothing in the cited pages of the transcript
that supports this charge. It clearly was not the purpose
of the government’s statements at that time. The govern-
ment was trying to blunt the attack on the witness’
credibility by requesting that no reference be made to
the fact of conviction.
Interestingly enough, at p. 536, when defense
counsel is first afforded an opportunity to answer the
government’s request, the following appears:
“THE COURT: Mr. Edelbaum?
MR. EDELBAUM: Your Honor, may I first
inquire, before anything else, is it the purpose of
this witness’ testimony to show propensity?
MR. FRANKEL: Yes, your Honor, that is one
of the areas, and the second area is also, of course,
identification.
MR. EDELBAUM: Your Honor, on the question
of propensity, I at this time withdraw my request
for an entrapment charge to this jury and I, there-
fore, suggest to your Honor, that any evidence
of propensity be excluded from this jury. :
THE COURT: Mr. Tigue, you also requested
a charge of propensity?
MR. TIGUE: I would withdraw it as well if
the Government is precluded from offering that
evidence.
MR. EDELBAUM: And I won't argue entrap-
ment.”
12a
Appendix B
Opinion of United States District Court
Dated June 27, 1979
Clearly, defendants wanted no part of that murder
conviction for their own good reasons which were
completely unrelated to favors or motive for testifying
falsely. The tactical decision was based on such strong
reasoning that defendants were willing to forgo attacking
credibility, if in fact material of which they had no
knowledge existed to support such attack.
Nothing speaks more eloquently of counsel’s
thinking than the record itself, from which the fol-
lowing quotations are particularly striking:
“MR. EDELBAUM: * * * . . . I say to your
Honor, all this business of bringing in -- I think
it is highly prejudicial now — to bring in a guy
witn a record, who had been reversed, for murder,
convicted, and to show his association with Mr.
Provenzano, the prejudice that will go to this
jury on voice identification.” (Tr. 545)
MR. EDELBAUM: * * * Judge, you have been
around long enough, almost as long as I have been
around. You know why they are bringing this
character in. You know that they are not bringing
this delightful character in just for a voice identi-
fication.
They want this jury to learn that this man with
a record, this man who has been convicted of crime,
they want the jury to know that he was associated
with Mr. Provenzano. Isn’t that terrible?
THE COURT; They have made a request that
you make no reference to this man’s record. They
don’t want a reference made to this man’s record.
ee
13a
Appendix B
Opinion of United States District Court
Dated June 27, 1979
MR. EDELBAUM: You know the vise [sic]
of that, Judge, is it restricts me. It restricts me
from going on cross examining him to show his
bias, his reason for testifying, what he has to gain.
THE COURT: Then do it.
MR. EDELBAUM: Judge, if I do that I cut
off my legs. I bring in something which is so pre-
judicial. Why do they bring this man in?” (Tr. 547-
48) (Emphasis supplied.)
“MR. TIGUE: * * * . . . it would seem to me
that the prejudice here so far outweighs the proba-
tive value that the government ought to be required
to use the less prejudicial route in proving who
said what on page 4 or 5 of the transcript.
It seems to me that the balance is just weighed
against the defendants here by bringing this per-
son in, and establishing essentially guilt by asso-
ciation.” (Tr. 549-50) (Emphasis supplied.)
“MR. TIGUE: One last thing, please, I would
suggest to minimize the prejudice in this area
that Mr. Frankel be permitted to ask leading
questions regarding the connection or the knowledge
he has - -
THE COURT: You will be more than happy
to ask leading questions, won’t you?
MR. FRANKEL: That is correct, your Honor.”
(Tr. 553)
According to the transcript at this point, defense
counsel were afforded an hour to discuss with their
clients how Picardo should be handled. The decision
was clear-they conducted no cross examination of
Picardo. Thus, Picardo was prevented from furnishing
l4a
Appendix B
Opinion of United States District Court
Dated June 27, 1979
any further damaging evidence against them either on
cross or redirect examination.
There are a number of other items pointed to
by the defendants which, despite their characterization
as being “a powerful basis for cross examination of
Picardo,” evaporate on close examination.
For example, the government did not participate
in an effort to block Picardo’s prosecution for escaping
from custody. The agents submitted the factual i.aterial
to the United States Attorney who, after reviewing it,
declined prosecution because not warranted by the
facts. The decision is easily understood when you know
the agents’ views on the escape which are set forth in
affidavits submitted on this motion. It is also one of
the explanations why reference to the escape was not
made at the bail application concerning which the
government’s attitude shocks the conscience of defense
counsel. There just was no help given to Picardo in
that application aside from furnishing the court with
factual material regarding his status in the witness
protection program. The court certainly needed that
information to make an informed decision.
There is no basis to an allegation that Partington
executed his affidavit on December 23, 1977, with the
full knowledge that Picardo had escaped from jail in
Maine on that very day.
The notes by the Assistant United States Attorney
Stewart did not refer to the 1974 meeting which was
the basis of the indictment in this case. It clearly refers
to a meeting a year before that in 1973. This is a classic
case of similar act which certainly justifies the tactical
decision made by defendants on the trial. If there were
to be a new trial in this case, defense counsel would
15a
Appendix B
Opinion of United States District Couri
Dated June 27, 1979
fight to keep it out on direct examination, and wouldn’t,
° ° . . /
touch it with a ten-foot pole on cross examination. /
Defendants claim that Picardo gave the agents
wrong information. The exhibits which they submit in
support of this accusation merely show that Picardo
said certain people were present at a meeting in the
Americana Hotel in Miami, Florida, but the agents
could not corroborate the statement by looking at the
hotel register. Failure to be able to corroborate the
statement does not mean that the statement is false.
Furthermore, | am not prepared to assume that the
persons in the circles in which these defendants move
always give their right names.
Counsei make much of the information in these
reports about Picardo’s criminal activities other than
the murder conviction, and urge that it furnishes power-
ful material for destroying his credibility. There is no
doubt that Picardo is not a nice boy. Again, I am sure
that this was not unknown to the defendants. In view
of defendants’ studied tactical decision not to make
Picardo’s criminal record known to the jury, it is incon-
ceivable that a few more specifics, even assuming
Provenzano’s lack of knowledge of such specifics, might
have changed the course of the trial.
Furthermore, one of the exhibits which sets forth
some of Picardo’s criminal activities as he related them
to the agents, includes references to Provenzano and
his group. Under the circumstances, would counsel have
changed their tactics and opened the door to the defend-
ants’ prior activities and the field day it would have
afforded the government on redirect examination?
For example, in this very same document, Picardo
speaks of meeting with Provenzano and a man named
l6a
Appendix B
Opinion of United States District Court
Dated June 27, 1979
Fred Turino. Later in the document it is stated that
the merchandise taken in the hijacking was given to
Turino to dispose of.
Defendants are shocked that Picardo, in con-
nection with being handled under the witness protection
program, was put in an institution which permitted
visits from his family. I never understood this to be
a special favor, unless Picardo for some reason of mis-
behavior was being punished by being denied such
visits. Nothing to this effect appears in the record.
Defendants are also shocked at the promise that
Picardo extracted that he would not be put in solitary
confinement, again in connection with the witness pro-
tection program. Counsel know very well that this
could be part of the protective device programmed
for a cooperating prisoner, but Picardo did not want
that alternative. There was no basis for putting him
in solitary confinement absent cooperation, and there-
fore Picardo was not getting more favorable treatment
for his cooperation.
Counsel refer to the promise by the government
to make sure that Picardo would receive all the credit
he was entitled to in computing his parole eligibility
time. I fail to see the materiality of such evidence to
attack Picardo’s credibility.
Finally, there is counsel’s shock at learning for
the first time after trial that Picardo was put in the
witness protection program because of the rumors
received from several sources that Provenzano had
issued a “contract” to kill him. I must admit that I have
great difficulty in understanding how counsel would bring
this tidbit to the attention of the jury to help convince
17a
Appendix B
Opinion of United States District Court
Dated June 27, 1979
it that the defendants were innocent. Are we to believe
that such information would help destroy Picardo’s
credibility?
If by some chance defendants devised a way to
bring this information to the attention of the jury without
harming their position, I speculate about the possibility
that the murder of Briguglio might not become material
on redirect examination. Briguglio’s name was men-
tioned in some of the reports which counsel have sub-
mitted to the court. Briguglio was reputedly a close
associate of Provenzano and was murdered on the second
day of this trial over on Mott Street, just a few blocks
away from the courthouse. Fortunately, the jury was
sequestered and did not learn of the murder during
the course of the trial.
Then there was the pending murder indictment
against Provenzano and Briguglio in the New York
state court which went to trial immediately after this’
trial, and in which Picardo was again a principal wit-
ness for the prosecution. Killings, threats of killings,
and alleged involvement in killings do not seem to be
uncommon in these circles, and rumors of “contracts”
must be taken seriously.
In weighing this material and its possible impact
on the outcome of the trial, the court is justified in
taking into consideration counsel’s studied decision
not to cross examine Picardo, and the reasons therefor.
It seems to me that all of Picardo’s prior bad. behavior
would only buttress defendants’ position to stay as
far away from him as possible.
Of course, each defendant must be treated separately
in this application, but anyone familiar with the transcript
18a
Appendix B
Opinion of United States District Court
Dated June 27, 1979
of the trial knows that the case against Bentro was
much stronger than the one against Provenzano.
Counsel vehemently claim, however, ‘that the
material discussed above would be used if a new trial
were to be granted. I do not find any need for an eviden-
tiary hearing on any of the claims made by defendants.
Only last month in the New Jersey trial Picardo went
through a searching cross examination by Provenzano’s
counsel who, at the time, had all of this material in his
possession.
It is clear to me from the analysis I have made of
the material, and taking into consideration the scope
of redirect examination available to the government,
that in the context of the standard of materiality quoted
above from Agurs, this motion must be denied.
So ordered.
Dated: Charles M. Metzner
New York, N.Y. U.S.D.J.
June 26, 1979
as
19a
Appendix C
Opinion of United States Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Nos. 221, 361—September Term, 1979
(Argued finally September 17, 1979
Decided January 16, 1980.)
Docket Nos. 78-1251, 79-1247
UNITED STATES OF AMERICA,
Appellee,
-v.-
ANTHONY PROVENZANO, a/k/a “TONY PRO”,
Appellant.
Before:
FRIENDLY, TIMBERS and VAN GRAAFEILAND,
Circuit Judges.
Appeal from a judgment entered after a jury trial
in the Southern District of New York, Charles M.
Metzner, District Judge, convicting appellant of con-
spiracy to pay a kickback to a union pension and welfare
fund trustee to obtain favorable action on a loan
proposal.
Affirmed.
20a
Appendix C
Opinion of United States Court of Appeals —
Gerald L. Shargel, New York, N.Y.
(Maurice Edelbaum, Jay Goldberg,
John Pollok, and Fischetti & Shargel,
and Hoffman, Pollok, Mass &
Gasthalter, New York, N.Y., on the
brief), for appellant.
Barbara S. Jones, Asst. U.S. Atty.,
and Steven K. Frankel, Asst. U-S.
Atty., New York, N.Y. (Robert B.
Fiske, Jr., U.S. Atty, and Howard W.
Goldstein, Asst. U.S. Atty., New
York, N.Y., on the brief), for appellee.
TIMBERS, Circuit Judge:
On this appeal from a judgment entered after a
seven day jury trial in the Southern District of New
York, Charles M. Metzner, District Judge, convicting
appellant of conspiracy to pay a kickback to a union
pension and welfare fund trustee to obtain favorable
action on a loan proposal, in violation of 18 U.S.C.
§§ 371 and 1954 (1976), we find the following to be the
principal questions raised on appeal:
(1) Whether the evidence was sufficient to sup-
port the conviction;
(2) Whether the district court erred in its charge
to the jury; and
(3) Whether the district court erred in denying
appellant’s motions for a new trial based on asserted
non-compliance by the government with the dis-
closure requirements of Brady v. Maryland, 373
U.S. 83 (1963), and the Jencks’ Act, 18 U.S.C.
§ 3500 (1976).
For the reasons below, we affirm.
a te
2la
Appendix C
Opinion of United States Court of Appeals
I.
The essence of the crime of which appellant was
convicted was that he and co-defendant Anthony Bentro!
conspired to pay a kickback to Rocco DePerno (“Rock”),
a union pension and welfare fund trustee, to obtain
DePerno’s favorable action on a proposed mortgage
loan to the Woodstock Hotel in Manhattan. DePerno’s
kickback, as well as substantial sums? for Bentro, Pro-
venzano and other conspirators, were to come from
so-called “bonus points”, i.e. large, under-the-table
amounts to be paid by the borrower in addition to
legal interest.
In view of appellant’s challenge to the sufficiency
of the evidence, we summarize here in some detail
those facts believed to be necessary to an understanding
of our rulings on the legal issues raised.
'Bentro was tried and convicted with Provenzano on the same
conspiracy: count. On the original appeal, which was argued before
us on October 16, 1978, Bentro was an appellant as well as Provenzano.
Subsequently, however, Bentro entered into a cooperation agreement
with the government. Prior to the second argument before us on
September 17, 1979, we granted the government’s motion to remand
Bentro’s case to the district court so that the government, pursuant
to this cooperation agreement, could consent to the entry of an
order vacating Bentro’s conviction. Provenzano remains the sole
appellant here.
?The amounts of illegal payments contemplated, if the deal had
been consummated as planned, are substantial. The thirteen “bonus
points” referred to below amount to $325,000 on the initially planned
$2.5 million mortgage, or $25,000 a “point”. Keeping in mind the
ratio of bonus points to the amount of the deal helps to explain -
the seriousness of the warning, referred to below, that Rock will
“take ten” on a $2.5 million deal, or a quarter of a million dollars.
It also explains why Paladino and Goldfarb were pleased to learn
that their share had been increased by three points.
22a
Appendix C
Opinion of United States Court of Appeals |
A.
The instant indictment resulted from “Operation
Cleveland”, a special joint federalcity undercover pro-
ject which was established to investigate corruption
and organized crime in the garment center of New
York City. Toward that end, the Gerro Trucking Com-
pany was set up-as a front for the investigation. An
FBI informant, Herman Goldfarb, was installed as
the trucking company’s president. Before long, Goldfarb
was approached by one Lawrence Paladino, who later
was named as an unindicted conspirator. He offered
the Gerro company labor tranquility in exchange
for extortion payments of $150 a month.
Those in charge of the investigation decided to
pay the sum demanded. They hoped to use Paladino as
an entree to other criminal groups preying on the cloth-
ing industry. They were not disappointed. Paladino
and Goldfarb soon began to discuss arranging loans
for various parties from labor union funds. Paladino
and Goldfarb were to retain substantial sub rosa “com-
missions” for their efforts. Paladino told his new busi-
ness associates that Provenzano — “Tony Pro”
would be able to obtain the mortgage money required
for their loans.
During a March 6, 1974 conversation, for example,
Paladino told Goldfarb that he had informed Pro-
venzano of a possible $2.5 million loan deal. Paladino
said he would arrange a meeting for Goldfarb to talk
the matter over with Sam Provenzano, a New Jersey
union leader and appellant’s brother.’ Paladino and
‘Unless otherwise stated, all references in this opinion to “Pro-
venzano” are to appellant Anthony Provenzano, as distinguished
from his brother Sam Provenzano.
23a
Appendix C
Opinion of United States Court of Appeals
Goldfarb had discussed charging 12 per cent interest
for the loan itself, plus “13 points” of “bonus money”,
or $325,000, for themselves. Paladino stated, however,
that “over there I don’t know what the percentage
is.” He urged Goldfarb to be candid with “Sammy”,
suggesting that “we split down the middle.”
The Woodstock Hotel mortgage loan transaction
was first discussed in June 1974. At that time Goldfarb
learned through Hyman Schwartz, a mutual friend,
that one of the hotel’s new owners, Gilbert Federbusch,
was seeking a mortgage loan for refurbishing and to
retire old debts. The three men met at the Gerro office
shortly thereafter. -Federbusch agreed to the terms
outlined by Goldfarb: a $2.5 million mortgage loan
would be obtained from a union, with interest of one
per cent a month plus a 13 per cent “bonus.”
At a meeting on July 2 Paladino told Goldfarb
that arrangements for the mortgage had been com-
pleted. He stated, however, that the 13 per cent bonus
would have to be split with others. He informed Goldfarb
that he planned to funnel the loan “through Utica”,
the home of DePerno’s local. He warned Goldfarb
not to “even mention Tony Pro.” On July 11 a meeting
took place in a midtown office. Goldfarb, Provenzano,
Bentro, Paladino and others were present. They dis-
cussed several transactions, including the Woodstock
mortgage. Viewing this discussion in the light most
4Tapes of conversations referred to in this opinion were obtained
by the government through Goldfarb, who wore either a Kell elec-
tronic transmitter, a Nagra recording device, or both. Most of his
meetings also were under surveillance by New York City police
officers.
The tapes of these conversations have various unintelligible
segments. This goes to their weight, not their admissibility. United
States v. Bryant, 480 F.2d 785, 789-91 (2 Cir. 1973). No issue is
raised on appeal regarding the admissibility of the tapes or the
transcripts thereof.
24a
Appendix C
Opinion of United States Court of Appeals |
favorable to the government, as we must at this stage
of the case,> the jury could have found that the follow-
ing is substantially what took place.®
‘United States v. McCarthy, 473 F.2d 300, 302 (2 Cir. 1972);
Glasser v. United States, 315 U.S. 60, 80 (1942).
“The most critical part of the discussion at the July 11 meeting,
according to the transcript of the tape recording produced by the
government, is the following:
“Tony Bentro: Is this the one at 2.4 Larry?
[Unknown Person]: [Unintelligible]
[Goldfarb]: Two million three. She'll appraise out at 3.5.
Tony Bentro: All right, Tony, on this, Rock said, I gotta
give it to Harold Silverberg. That’s where I’m gonna go tomorrow
[ unintelligible].
Tony Provenzano: You're not interested?
Tony Bentro: Oh, Rock, I can’t.
Tony Provenzano: He’s gonna take ten.
Tony Bentro: Rock’ll take half. [Unintelligible] Harold
puts the okay. Harold puts the okay if it’s good. Not good.
If it’s on the line he'll take it an’ say okay. He’s a New York
accountant or [unintelligible] former New York accountant.
Tony Bentro: He'll take half...[unintelligible].
Tony Provenzano: [Unintelligible]
Tony Bentro: So Rock’ll take what?
Tony Provenzano: 2.3 altogether?
[Goldfarb]: We want two million three.
{Unknown Person]: 2.3.
[Goldfarb] 2.3...
Tony Bentro: Rock’ll take [unintelligible].
Tony Provenzano: The whole thing.
Tony Bentro: Yeah.
[Goldfarb]: It appraises for 3.5, Tony.
Tony Bentro: So Larry, you'll take a quarter.
[Goldfarb]: So we're taking 70 percent.
Tony Bentro: Right.”
25a
Appendix C
Opinion of United States Court of Appeals
There was a brief initial discussion of the Wood-
stock deal. Provenzano interjected questions about
the hotel’s name and location. Goldfarb outlined the
supporting documentation for the deal. He explained
the tax advantage the hotel owner was obtaining. Then
Bentro, addressing Provenzano, said that “Rock”
had told him, “I gotta give it to Harold Silverberg”
for approval. Silverberg was the accountant for DePerno’s
pension fund. Provenzano asked Bentro whether the
reference to an accounting approval indicated a lack
of interest on the part of Bentro. The latter replied,
“Oh, Rock, I can’t.” Provenzano warned, “He’s gonna
take ten”, referring to Rock. Bentro then stated that he
anticipated that the accountant’s scrutiny of the trans-
action would be purely pro forma. According to Bentro,
“Harold puts the okay. Harold puts the okay if it’s
good. Not good. If it’s on the line he'll take it an’ say
Okay.”
Provenzano then established through questioning
of Bentro and others that DePerno would finance
“the whole thing.” After a brief discussion of restaurant
concessions in Utica, the men turned to the matter of
what additional documentation would be needed to
close the Woodstock deal. Goldfarb wanted some
guarantee of the loan before spending “a few thousand
bucks” for a realtor’s appraisal of the property. Bentro
explained that before he could provide a letter of intent
he had to “get some approval, half ass approval from
the board”, adding, “With Rock DiPerna [sic] from
the board.”
Bentro told Goldfarb to see the accountant Silver-
berg the following day. He assured him that Rock was
fully familiar with the details of the deal—legitimate
and otherwise:
26a
Appendix C
Opinion of United States Court of Appeals —
“See, I told Rock the whole bit . . . . I gave it
to Rock, and I told him, look at the numbers .. .
[unintelligible], thirteen per cent plus monthly . . .
[unintelligible] . . . whatever they want.” (emphasis
added).
Paladino was alarmed. He feared that Bentro had
agreed that DePerno would get the entire “bonus”.
Paladino said to Bentro, “Thirteen, you told him he
was gonna get thirteen?” Bentro replied that the legal
interest rate on the loan would be 12 per cent. There
was further discussion, initiated by Paladino, regarding
“the percentage over here and we’re gonna make under”,
referring to the bonus points.
Bentro then commented on the large amount of
money at DePerno’s disposal in the pension and wel-
fare fund, and the relatively few governmental restrictions
on its use. There was further discussion of the bonus
money and its division. Bentro assured Paladino and
Goldfarb that, although “the ten” that DePerno would
likely seek was “the going rate”,? Tony (Provenzano)
would talk to the trustee because “Tony can do [unin-
telligible] . . . with Rock.” As Bentro had stated earlier
on this matter:
“So you, you tell Tony what you’re gettin’ an’
Tony’ll tell you what you gonna give away,
whatever he can cut off comes back.”
Goldfarb testified at the trial that “the going rate” of ten might
have referred to the legal interest rate rather than the illegal rake-
off. Before the grand jury, however, he had testified that it referred
to the bonus points. His grand jury testimony was introduced at
the trial.
27a
Appendix C
Opinion of United States Court of Appeals
Shortly after the July 11 meeting Paladino brought
good news to Goldfarb. The latter testified at trial
that Paladino told him that their share of the bonus
had been upped from five to eight “points”, with the
remaining five going to the union, i.e. to DePerno. At a
meeting on July 17 Paladino again confirmed that
“his side” would be getting eight points. He also explained,
“[T]here’s three on their side . . . Tony, Tony and
another guy [unintelligible]”, to which Goldfarb replied,
“Must be DePerna [sic].” Paladino responded, “I
don’t even want to know. That’s who I’m speaking of. Don't
go into that.” (emphasis added).
B.
The mortgage loan transaction for the Woodstock
Hotel never was consummated. By October 1974 the
government had closed down Operation Cleveland
and had sold the Gerro Trucking Company.
On December 9, 1975 a Southern District grand
jury returned indictment 75 Cr. 1194 which charged
Provenzano and Bentro with a conspiracy to offer
DePerno, a union official, a kickback to influence
actions in his official capacity. A superseding indictment,
also 75 Cr. 1194, was returned on September 21, 1977
naming the same two defendants.
The history of the indictments in 75 Cr. 1194 is
set forth in Judge Bonsal’s opinion of November 11,
1977. United States v. Provenzano, 440 F.Supp. 561
(S.D.N.Y. 1977). The upshot was that Judge Bonsal,
upon motions by both defendants, ordered the original
and superseding indictments in 75 Cr. 1194 dismissed
without prejudice to the government’s seeking a new
indictment. Between the time of informant Goldfarb’s
cooperation and his testimony before the second grand
28a
Appendix C
Opinion of United States Couri of Appeals —
jury, he had had a change of heart about the case. In
a letter dated October 7, 1977 to Barbara Jones, the
Assistant United States Attorney in charge of the case,
Goldfarb recited his dissatisfaction with the treatment
accorded him by the government and hedged signifi-
cantly on his testimony against Provenzano. He informed
Miss Jones that he had not been looking at Provenzano
when the “He’s gonna take ten” remark was made at
the July 11, 1974 meeting and he had assumed by the
process of elimination that it was Provenzano talking.
Judge Bonsal dismissed the superseding indictment
because the government had failed to bring Goldfarb
before the second grand jury but had relied instead
on his earlier, less equivocal grand jury testimony.
On December 19, 1977, approximately a month
after Judge Bonsal’s decision, another indictment, 77 Cr.
889, charging substantially the same kickback con-
spiracy was returned. This third indictment led to the
instant convictions of Provenzano and Bentro.
The trial began before Judge Metzner on March 17,
1978. The government’s case again relied on the testi-
mony of informant Goldfarb. Goldfarb by this time
professed an inability to identify Provenzano’s voice
on the tape of the crucial July 11, 1974 meeting. This
was the only meeting at which Provenzano was present.
“The government therefore introduced other evi-
dence on the issue of identity. It relied on the testimony
of another witness, Ralph Picardo, for that purpose.
Picardo was a former associate of Provenzano. He had
been taken into the federal witness protection pro-
gram. He was a man with a checkered past. He had
been convicted of murder in a New Jersey state court.
That conviction was reversed on appeal. He never was
retried.
a ————
retin tienen. 5 a
29a
Appendix C
Opinion of United States Court of Appeals
The government made certain disclosures to the
defense regarding Picardo pursuant to Brady v. Maryland,
supra, and the Jencks Act. The Brady material included
information that Picardo had been convicted of murder,
that his conviction had been reversed, and that he was
in the federal witness protection program. The Jencks
Act material consisted of Picardo’s testimony before
the grand jury which returned the instant indictment.
Judge Metzner, on motion of the government, entered
an ex parte order which permitted the government
to withhold the Brady and Jencks Act material relating
to Picardo until the day before his testimony. Judge
Metzner entered this order upon representations by the
government that special security measures were necessary
for Picardo’s protection.’ The order was not disclosed
to the defense until shortly before the argument of
the original appeal in our Court.
Despite the information which Provenzano’s trial
counsel had about Picardo from the government’s
disclosures and from Provenzano himself, he chose
not to cross-examine Picardo.? Judge Metzner con-
cluded, in denying the motions for a new trial based
on alleged failure to make full disclosure under Brady
and the Jencks Act, that the defense had waived cross-
examination of Picardo as a matter of trial tactics.
‘See note 27, infra, referring to the government affidavit in
support of the ex parte order. Judge Metzner transmitted the sealed
file, including the ex parte order an2@ the supporting affidavit, to
our Court about ten days before the original argument in our Court
on October 16, 1978. On the date of that argument, upon application
by appellant’s counsel, we ordered that the file be unsealed and be
made available to appellant’s counsel.
*Bentro’s counsel also chose not to cross-examine Picardo.
30a
Appendix C
Opinion of United States Court of Appeals |
The jury returned its verdict convicting Provenzano
on March 25, 1978.!° On July 11, 1978 Judge Metzner
sentenced him to four years in prison, the term to be
served concurrently with a term of life imprisonment
imposed by a New York State court for murder.!!
From the judgment of conviction of July 11, 1978,
the instant appeal has been taken.
II.
In the light of these facts and prior proceedings,
we turn directly to the question whether the evidence
was sufficient to support appellant’s conviction. We
hold that it was.
Aside from appellant’s general claim that the
evidence of his guilt was insufficient to warrant sub-
mitting the case to the jury, he asserts two specific claims
regarding the evidence of a conspiracy and appellant’s
connection with it.
First, appellant argues that there was insufficient
evidence to establish the alleged object of the con-
spiracy, namely, to offer or promise a kickback to
/Bentro, Provenzano’s co-defendant at trial, also was convicted.
See note 1, supra. He was sentenced to an 18 month term of im-
prisonment.
''Provenzano had been convicted of murder in the County
Court of Ulster County, New York, and had been sentenced to
life imprisonment on June 21, 1978. Subsequently, and prior to
the final argument in the instant case on September 17, 1979,
Provenzano’s Ulster County Court conviction was reversed and
the case was remanded for a new trial. People v. Provenzano,
A.D.2d , 417 N.Y.S.2d 317 (3d Dept. 1979).
ee la A PDN td om mie te Ee
3la
Appendix C
Opinion of United States Court of Appeals
DePerno to influence his action as a pension and wel-
fare fund trustee.!2
It is elemental, of course, that a person “cannot
conspire to commit a specific crime unless he is aware
of all the elements of the crime,” United States v.
DeMarco, 488 F.2d 828, 832 (2 Cir. 1973).!3 From
this, however, it does not follow that in this case the
government was required to prove that DePerno either
accepted or was offered as a kickback his share of the
bonus points.'* It was sufficient that the government
proved that Provenzano knowingly joined the group
which agreed to make such a payment to DePerno.
We are satisfied that the act which constituted the
gravamen of the alleged offense of conspiracy—“concert
in criminal purposes, rather than concert in crime”,
United States v. Krulewitch, 336 U.S. 440, 447 n.4
'*Appellant was convicted of conspiring to violate 18 U.S.C.
_ § 1954 (1976) which, in relevant part, provides:
“[Any pension or welfare plan trustee who] receives or
agrees to receive or solicits [sic] any fee, kickback, commission,
gift, loan, money, or thing of value because of or with intent
to be influenced with respect to, any of the actions, decisions,
or other duties relating to any question or matter concerning
such plan or any person who directly or indirectly gives or
offers, or promises to give or offer, any fee, kickback, com-
mission, gift, loan, money, or thing of value prohibited by
this section, shall be [punished]....”
The De Marco court quoted Judge Learned Hand’s classic,
though simplistic, observation:
“While one may, for instance, be guilty of running past a
traffic light of whose existence one is ignorant, one cannot
be guilty of conspiring to run past a light unless one supposes
that there is a light to run past.” United States v. Crimmins,
123 F.2d 271, 273 (2d Cir. 1941).
'4Since the deal never was consummated, of course De Perno
never received his bonus points.
32a
Appendix C
Opinion of United States Court of Appeals
(1949) (Jackson, J., concurring)!5—was adequately
established here.
Accordingly, we hold that there was sufficient
evidence from which the jury could find that there was
a conspiracy to commit a particular offense and not
merely a vague agreement “to do something wrong”.
United States v. Rosenblatt, 554 F.2d 36, 38-40 (2 Cir.
1977); United States v. Gallishaw, 428 F.2d 760, 763
(2 Cir. 1970).
Second, appellant argues that his connection
with the alleged conspiracy was not established suf-
ficiently to permit the admission of the testimony of
the conspirator Goldfarb. In United States v. Geaney,
417 F.2d 1116 (2 Cir. 1969) (Friendly, J.), cert. denied,
397 U.S. 1028 (1970), we set forth the standard by which
the trial judge should determine whether to admit in
evidence hearsay statements of a conspirator, namely,
whether a “fair preponderance of the evidence inde-
pendent of the hearsay utterances” has established
the participation in the conspiracy of the defendant
against whom such hearsay statements are offered.
Id. at 1120. Put another way:
“The threshold requirement of admissibility
is satisfied by a showing of a likelihood of an
illicit association between the declarant and
the defendant. . . .” United States v. Glazer,
532 F.2d 224, 228 (2 Cir.), cert. denied, 429 U.S.
844 (1976), quoting United States v. Ragland,
'S Accord, lannelli v. United States, 420 U.S. 770, 777 n. 10
(1975):
“Nonetheless, agreement remains the essential element of
the crime, and serves to distinguish conspiracy from aiding
and abetting which, although often based on agreement,
does not require proof of that fact, ... and from other sub-
stantive offenses as well.”
eet ee
iran sD hla
silat tne
ee A - s0 Raise BEVEL
Balak meth nak mentihivis ter roeie
33a
Appendix C
Opinion of United States Court of Appeals
375 F.2d 471, 477 (2 Cir. 1967), cert. denied,
390 U.S. 925 (1968).
At the time the Goldfarb testimony was offered,
the evidence had established clearly that Provenzano
was involved in efforts to obtain a mortgage loan for
the Woodstock. He does not dispute this. The only
issue is whether the evidence supports the inference
that the loan was to be facilitated by a bribe to DePerno.
It is clear, however, that Bentro assured all those present
at the July 11 meeting that Provenzano would work
matters out with DePerno, and that Bentro, Provenzano
and DePerno would share in the bonus points.
Paladino and Goldfarb surely understood that
DePerno was to receive a kickback for his efforts. The
effect of the statements made by Provenzano at the
July 11 meeting, at which the details of the loan were
fully discussed, was that he, too, was aware of and
had joined the conspiracy. “When, as in this case, the
existence of a conspiracy has been shown, evidence
sufficient to link another defendant with it need not
be overwhelming .. . .” United States v. Head, 546
F.2d 6, 9-10 (2 Cir. 1976), cert. denied, 430 U.S. 931
(1977).
Accordingly, we hold that Judge Metzner correctly
concluded that the Geaney test had been complied
with and that he properly admitted the Goldfarb testi-
mony.
Finally, as for appellant’s general claim that the
evidence of his guilt was insufficient to warrant sub-
mitting the case to the jury, we disagree.
The standard for making that determination is
so well established in this Circuit that we shall not
dilate upon it. United States v. Rivera, 513 F.2d 519,
34a
Appendix C
Opinion of United States Court of Appeals
528-30 (2 Cir.) (Friendly, J.), cert. denied, 423 U.S. 948
(1975); United States v. Taylor, 464 F.2d 240 (2 Cir. 1972)
(Friendly, J.). As stated in Rivera, supra, 513 F.2d at
529, the test is whether
“upon the evidence, giving full play to the right
of the jury to determine credibility, weigh the
evidence, and draw justifiable inferences of fact,
a reasonable mind might fairly conclude guilt
beyond a reasonable doubt’ ”, quoting Curley v.
United States, 160 F.2d 229, 232-33 (D.C. Cir.),
cert. denied, 331 U.S. 837 (1947).
Accord, United States v. Daley, 564 F.2d 645, 652
(2 Cir. 1977), cert. denied, 435 U.S. 933 (1978); United
States v. De Garces, 518 F.2d 1156, 1159 (2 Cir. 1975);
United States v. Freeman, 498 F.2d 569, 571 (2 Cir. 1974).
In the instant case, on the basis of the facts sum-
marized above, we hold that there was sufficient evidence
from which the jury could find—directly and by proper
inference—that appellant knowingly participated in
the conspiracy. It is a rare case indeed where all aspects
of a conspiracy can be laid bare in court with the pre-
cision of a surgeon’s scalpel. A conspiracy by its very
nature is a secretive operation. Applying the test set
forth above, however, we are satisfied that there was
sufficient evidence to.support the jury’s guilty verdict.
Il.
We turn next to appellant’s claim that the district
court erred in its charge to the jury in two respects,
namely, in failing to charge specifically that mere asso-
ciation was an insufficient basis upon which to predi-
cate a conspiracy conviction, and in failing to charge
35a
Appendix C
Opinion of United States Court of Appeals
that the testimony of Goldfarb as an informant and
perjurer should be examined with special care. We find
no mer't in either aspect of this claim of error.
First, with respect to the court’s failure to give the
so-called mere association instruction, we believe that
the charge read as a whole made it abundantly clear to
the jury that the converse of mere association, i.e.
active participation with intent to further the objec-
tives of the conspiracy, was required. For example,
Judge Metzner charged the jury as foilows:
“If you satisfy yourselves beyond a reasonable
doubt that the conspiracy as alleged in the indict-
ment existed, then you must determine beyond a
reasonable doubt as to each defendant whether the
defendant knowingly and wilfully was an active
participant in the unlawful plan with the intention
of furthering its objectives. Mere knowledge by a
defendant of an alleged illegal act on the part
of some other defendant or alleged co-conspirator
is not sufficient. Merely acting in a way which
incidentally furthers the purpose of a conspiracy
without knowledge that a conspiracy exists does
not make a person a member of the conspiracy.”
(emphasis added).
Appellant cites various cases which he says make
the giving of the mere association charge mandatory.
We think his reliance on these cases is misplaced under
the circumstances of this case. For example, in United
States v. MacDougal-Pena, 545 F.2d 833, 836-(2 Cir.
1976}, the propriety of such a charge was mentioned
only by way of dictum, such a charge not having been
requested in the trial court. In United States v. Terrell,
36a
Appendix C
Opinion of United States Court of Appeals
474 F.2d 872, 876 (2 Cir. 1973), we held that
“a Garguilo charge” (referred to below) was not required
except where the evidence was close. The leading case
in this Circuit is United States v. Garguilo, 310 F.2d
249 (2 Cir. 1962) (Friendly, J.),!° where we said:
“The closeness of the issue against Macchia
imposed an obligation on the trial judge to
instruct the jury with extreme precision, as he
realized, and on us to review the charge with
what, in a less doubtful case, would be undue
meticulousness. [citations omitted]. Reading
the entire charge, we cannot overcome a fear
that the judge, quite unwittingly and simply
by emphasis, may have had the jury to believe
that a finding of presence and knowledge on the
part of Macchia was enough for conviction... .
Never were the jurors told in plain words that
mere presence and guilty knowledge on the
part of Macchia would not suffice unless they
were also convinced beyond a reasonable doubt
that Macchia was doing something to forward
the crime—that he was a participant rather
than. merely a knowing spectator.” Id. at 254
(emphasis added).
The “closeness of the issue against Macchia” finds
no counterpart in the instant case. Here appellant
was not merely present with the other conspirators
at the critical July 11 meeting; he was an active partici-
pant with full knowledge of the unlawful plan and
'6Terrell and Garguilo were both aiding and abetting cases
where the evidence against the appellants in question consisted
almost entirely of their presence at the scene of criminal acts per-
formed by the principals.
fakes,
Ne Fai Bo MC ROR 0) Aaah hla ale TO NPD Oe OR TO eG mw
DF CRAM tag
ee ee ee nee
os
37a
Appendix C
Opinion of United States Court of Appeals
plainly intended to further its objectives. That is pre-
cisely what Judge Metzner charged that the jury must
find before it could convict appellant.
Second, with respect to the asserted failure of
the court to charge the jury to examine Goldfarb’s
testimony with special care and caution because he was
an informant and perjurer, this claim can be disposed
of summarily.'!? Judge Metzner did give the standard
charge regarding the jury’s exclusive function to deter-
mine the credibility of witnesses and the weight and
value to be given their testimony. He went further and
instructed the jury that Goldfarb was a paid informant
whose relationship to the government was a factor
which should be considered in evaluating his testimony.
Still referring to Goldfarb, the judge told the jury that
“Evidence that he has been convicted of a crime may
be considered by you in assessing his credibility as a
witness and the weight you will give to his testimony.”
More than that was not required.
We hold that the district court did not err in its
charge to the jury in either respect claimed by appellant.
IV.
This brings us to the final question raised on appeal—
whether the district court erred in denying appellant’s
motions for a new trial based on asserted non-compliance
by the government with the disclosure requirements
'7This asserted error in the court’s charge to the jury was not
raised at all in the trial court by appellant Provenzano. We deal
with it here only because Provenzano joined in the arguments raised
on appeal by his former co-appellant Bentro. As for Bentro, he did
not object in the trial court to the failure to give an informant’s
charge; he did object to the court’s failure to charge that a perjurer’s
testimony should be considered with caution and weighed with
great care.
38a
Appendix C
Opinion of United States Court of Appeals
of Brady v. Maryland, 373 U.S. 83 (1963), and the Jencks
Act, 18 U.S.C. § 3500 (1976).'8 We hold that it did not.!9
'8The Brady issue has received considerable attention by the
district court and by us.
After the jury returned its verdict of guilty on March 25, 1978,
Provenzano filed a motion for a new trial, pursuant to Fed. R. Crim.
P. 33, claiming that the government had failed to disclose Brady
material and Jencks Act material relating to the government witness
Picardo. On June 22, 1978, prior to the imposition of sentence,
the district court filed an opinion denying that motion.
Subsequent to the original argument of this appeal on October
16, 1978 and while the case was pending sub judice before us,
Provenzano first sought leave to file a supplemental! brief and there-
after to supplement the record on appeal by bringing to our attention
additional information relating to the Brady issues. On May 14,
1979, we denied Provenzano’s motion to supplement the record
on appeal but remanded the case to the district court to allow
Provenzano to move for a new trial based on the ground of newly
discovered evidence.
Pursuant to the remand, Provenzano moved for a new trial.
On June 26, 1979, the district court filed an opinion denying the
motion and again rejecting Provenzano’s claims that the undisclosed
evidence would have affected the outcome of the trial. From the
order entered on that opinion on June 27, 1979, Provenzano filed
a further notice of appeal.
On July 13, 1979, we entered an order consolidating all
appeals pending in this case; directing the parties to file supplemental
briefs limited to the Brady issue but combining arguments raised
on the initial appeal with those relating to the district court’s order
of June 27, 1979; and scheduling supplemental oral arguments on
September 17, 1979 before the same panel which hear the original
appeal. We heard the supplemental arguments on September 17.
By the time of the supplemental arguments on September 17,
Bentro was no longer an appellant in the instant case, note |, supra,
and Provenzano had been convicted of racketeering in the District
of New Jersey and sentenced to a 20 year term of imprisonment.
Note 24, infra. |
194 subordinate question raised by Provenzano is whether
the district court erred in refusing to hold an evidentiary hearing
(footnote continued on following page)
t
were cease IN LIP RP oe
ol nab OR MEET ln A RI Aine tin Me we 4
the ” .
nha eT
‘ ee eee
39a
Appendix C |
Opinion of United States Court of Appeals
In Brady v. Maryland, supra, 373 U.S. at 87, the
Supreme Court held that
“the suppression by the prosecution of evidence
favorable to an accused upon request violates due
process where the evidence is material either
to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.”
(emphasis added).
Subsequently, in United States v. Agurs, 427 U.S.
97 (1976), the Court formulated guidelines for deter-
mining whether evidence should be considered “mate-
rial” for the purpose of invoking the Brady rule. When
the prosecution is or should be aware that it is pre-
senting perjured testimony, a strict standard of mate-
riality must be applied. Thus, a defendant’s conviction
will be set aside “if there is any reasonable likelihood
that the false testimony could have affected the judgment
of the jury.” /d. at 103; see Napue v. Illinois, 360 U.S.
264 (1959); Mooney v. Holohan, 294 U.S. 103 (1935).
There is no claim of perjured testimony in the instant
case.
This strict standard of materiality also is applied
when a defendant has made a specific request for in-
formation that is withheld by the government. In such
cases, as in cases involving perjury, the defendant is
entitled to a new trial if there is any reasonable likeli-
hood that the evidence could have affected the outcome
(Footnote continued from preceding page)
on his motions for a new trial for the purpose of determining whether
the withholding of information was negligent or deliberate. United
States v. Morell, 524 F.2d 550 (2 Cir. 1975). We do not reach this
question. The inquiry to which such a hearing might have been
directed strikes us as not germane in light of the Supreme Court’s
decision in United States v. Agurs, 427 U.S. 97 (1976), where the
Court stated that “[i]f the suppression of evidence results in con-
stitutional error, it is because of the character of the evidence, not
the character of the prosecutor.” /d. at 110.
40a
Appendix C
Opinion of United States Court of Appeals
of the trial. United States v. Agurs, supra, 427 U.S. at
104-06; Ostrer v. United States, 577 F.2d 782, 786
(2 Cir. 1978), cert. denied, 439 U.S. 1115 (1979). Finally,
there are those cases in which the defendant has made
no request for the undisclosed information, or only a
general request. In such instances, the defendant is
entitled to g new trial only if the undisclosed evidence,
viewed in the context of the entire record, creates a
reasonable doubt as to his guilt. United States v. Agurs,
supra, 427 U.S. at 112-13; Ostrer v. United States, supra.
The information which was not disclosed to the
defense in this case relates solely to the motivation of
a single government witness, Ralph Picardo. Picardo’s
testimony at trial was used to help identify Provenzano’s
voice on a tape recording.2° The testimony did not
otherwise bear upon the evidence of Provenzano’s
illegal activities, or the details of the “workup” of the
Woodstock mortgage.
Provenzano initially contended that the govern-
ment violated Brady by failing to disclose the following
information: (1) the circumstances surrounding the
federal government’s removal of Picardo from the
Trenton (New Jersey) State Prison where he was incar-
cerated on his murder conviction; (2) the federal govern-
ment’s involvement in obtaining bail for Picardo pending
his appeal of that conviction; (3) the federal govern-
ment’s intervention with the New Jersey appellate
20Moreover, it appears that the jury itself could have concluded
that the voice was that of Provenzano, based in part on Goldfarb’s
grand jury testimony to that fact, which the trial jury heard, and
in part on the tapes, which the trial jury also heard.
rhe herentinad
niin oie
4la
Appendix C :
Opinion of United States Court of Appeals
courts to keep alive Picardo’s appeal from his murder
conviction; (4) the federal government’s intervention
which might have led to the state’s decision not to retry
Picardo on the murder charge; (5) the federal .govern-
ment’s involvement in obtaining the dismissal of a
larceny indictment against Picardo; and (6) Picardo’s
mental and physical health records. Provenzano also
contended that he was not given Jencks Act material
consisting of the transcript of an earlier appearance
by Picardo before a grand jury investigating unrelated
charges and the transcript of an interview with the FBI.
Subsequently Provenzano supplemented his list
of undisclosed Brady material by adding the following:
(1) government promises to Picardo of executive clemency
if he were convicted again on the reversed murder
charge; (2) promises of immunity to Picardo in return
for his cooperation with New Jersey authorities; (3)
Picardo’s escape from a Maine prison facility; (4) Picardo’s
history of prior criminal conduct; (5) conflicting state-
ments made by Picardo to government officials con-
cerning Provenzano’s activities; (6) discussions by
Picardo about illegal methods of overturning his con-
viction; and (7) attempts by Picardo to tamper with
a jury in his own case. Provenzano also contended
that additional Jencks Act material had been withheld.
There is some dispute on this appeal over whether
the above listed material was the subject of specific
defense requests for production and therefore is review-
able under the strict Agurs standard of materiality.2!
71\Judge Metzner assumed, for purposes of his ruling on the
first motion for a new trial, that there had been a specific request
for the Brady material. The government contends that the material
involved on the first motion was never the subject of a specific
request. The government concedes, however, that the Brady material
involved onthe second motion had been requested specifically.
42a
Appendix C
Opinion of United States Court of Appeals
There also is some dispute over how much of the material
in fact was producible under Brady—indeed, whether
some of the material existed at all.?2
After careful consideration of the contentions of
both sides, we find that resolution of these disputes
is unnecessary to the proper disposition of this appeal.
We assume arguendo that all’ of the material sought
by the defense was the subject of specific requests for
production and was properly producible by the govern-
ment. We conclude that there is no reasonable likeli-
hood that the undisclosed evidence would have affected
the outcome of the trial and Provenzano was not denied
due process by the government’s failure to. produce
22For example, the claim that federal officials had intervened
to prevent a retrial of Picardo’s murder case was based on a news-
paper report. In support of this claim, Provenzano stated only that
Picardo was “whisked” out of the Trenton State Prison. The claim
that the government had helped obtain the dismissal of Picardo’s
state larceny charges is based solely on the fact that a Special United
States Attorney was with Picardo when the charges were dropped.
Provenzano claims that the government did not disclose that Picardo
had used drugs, had tampered with a jury, and had discussed illegal
methods of overturning his murder conviction. The government,
however, submitted uncontradicted affidavits from prosecutors
that Picardo never had revealed such information to them. The
government also challenges appellant’s claims that the “newly-
disclosed” information used in Provenzano’s New Jersey rack-
eteering trial, see note 24, infra, is in fact Brady material. These
claims relate to asserted improvements in Picardo’s custodial status,
“management problems” in connection with the witness protection
program, and other government assistance to Picardo. The govern-
ment contends that these matters do not constitute benefits to Picardo.
With respect to the defense claim that Picardo’s physical
and mental health records were withheld, the defense never made
any showing as to how these records could be used to discredit
Picardo’s testimony.
A ee indie Tt ple BIA a Dla! ec Pete ay he ”
43a
Appendix C
Opinion of United States Court of Appeals
the material. We reach this conclusion because we are
satisfied that the defense never would have used this
undisclosed evidence to impeach Picardo.
Provenzano’s experienced trial counsel chose not to
cross-examine Picardo after the latter gave direct testimony
identifying Provenzano’s voice on tape recorded
conversations. In denying Provenzano’s motions for a new
trial, Judge Metzner found that the defense decision not to
cross-examine Picardo was a tactical one which would not
have been affected by the disclosure of additional Brady
material. He concluded that the withholding of the Brady
material had no effect whatsoever on the conduct of the
trial—let alone its outcome; defense counsel would not have
cross-examined Picardo under any circumstances, for
reasons discussed below. We agree.
Even if we did not agree with the trial judge’s
assessment of the situation, we still would not reverse his
determination except upon a far more compelling showing
than is presented by this record. After all, Judge Metzner
was at the trial. We were not. He obviously was in the best
position to appraise the possible effect of the Brady
material. His conclusion that the outcome of the trial was
not affected by its non-disclosure is entitled to great weight.
United States v. Sternstein, 596 F.2d 528, 531 (2 Cir. 1978).
In the instant case, moreover, there is substantial support in
the record for the trial judge’s view. We are in full agreement
with it. Our independent examination of the role played by
Picardo as a witness, the impeachment material that the
government did disclose to Provenzano, and the nature and
potential use of the undisclosed material leads us likewise to
the conclusion that the outcome of the trial would not have
been changed by the disclosure of the additional Brady
material.
Picardo’s testimony at trial was limited solely to the
identification of voices on a tape recording. Although
Picardo’s voice identifications were important, there was
other substantial evidence that supported the jury’s finding
44a
Appendix C
Opinion of United States Court of Appeals
of guilt. Indeed, there was other evidence which identified
Provenzano’s voice on the tape.?3 Because of Picardo’s
limited role as a witness at trial,?4 it is understandable
that counsel for Provenzano would refrain from cross-
examining Picardo if there was any likelihood that
such cross-examination would open the door for
additional, damaging testimony beyond the limited scope
of the witness’ direct testimony. Keeping the door closed to
such additional testimony is exactly what occurred.
There were two aspects of Picardo’s background which
defense counsel understandably would try to avoid at trial.
First, they would be expected to avoid Picardo’s past
criminal activities. The jury knew of Provenzano’s close
association with Picardo. To apprise the jury of the sordid
nature of Picardo’s background would result in spillover
prejudice to Provenzano far outstripping the impeachment
value of such evidence with respect to Picardo.*5 Second, at
the time of trial Picardo was enrolled in the federal witness
protection program. It was important for the defense to try
to keep this information from the jury, lest the jury infer or
even be told, that Picardo was receiving this protection out
of fear of Provenzano. .
Before Picardo took the witness stand, Provenzano’s
counsel was informed by the government that Picardo had
been convicted of murder, that the conviction had been
reversed on appeal, and that Picardo was receiving benefits
23See note 20, supra.
24The instant case is readily distinguishable from the later
racketeering trial of Provenzano in the District of New Jersey. In
the New Jersey trial, Provenzano did use some of the undisclosed
impeachment material to cross-examine Picardo. But Picardo
was a central witness in that case. His testimony was not limited
as it was here. Provenzano was convicted in that trial, despite the
use of the disclosed Brady material. On July 10, 1979 he was sentenced
to a 20 year term of imprisonment. He is currently serving that
sentence.
25At trial, defense counsel expressed this fear in attempting
to prevent Picardo from testifying at all. It is undisputed that some
of Picardo’s past criminal activities directly involved Provenzano.
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45a
Appendix C
Opinion of United States Court of Appeals
from the government as part of the witness protection
program. Armed with this limited Brady material,
defense counsel chose not to cross-examine Picardo,
having concluded that the risk of harm to Provenzano
inherent in such crossexamination outweighed any
possible benefit from trying to impeach Picardo. This
risk of harm in opening the door for prejudicial testi-
mony from Picardo would have outweighed the benefit
of cross-examination even if all the Brady material
had been disclosed at trial.
The undisclosed Brady material, which Provenzano
now claims he would have used to impeach Picardo,
falls into the two categories mentioned above—Picardo’s
prior criminal conduct and benefits conferred upon
Picardo by the government. Counsel knew that Picardo
had once been convicted of murder (although this con-
viction had been reversed on appeal), and chose not
to cross-examine him. It is unlikely that knowledge
of lesser acts of criminal conduct, which were not even
the subject of a conviction, would have resulted in
such cross-examination. Moreover, as stated above,
defense counsel surely did not want the jury to hover
upon Provenzano’s association with a person of Picardo’s
Shady background. It therefore is most unlikely that
defense counsel would have focused the jury’s attention
on Picardo’s past criminal conduct through cross-
examination of him.
The government benefits received by Picardo
likewise would have inhibited defense counsel in. cross-
examining Picardo. Any inquiry into such benefits
inevitably would have led to damaging testimony from
Picardo beyond the scope of his direct examination.
Questions about Picardo’s removal from the Trenton
State Prison or his freedom on bail pending appeal,
46a
Appendix C
Opinion of United States Court of Appeals
for example, undoubtedly would have resulted in answers
reflecting his concern for his safety.2 Questions con-
cerning promises of executive clemency, use immunity,
or aid in obtaining parole would have focused the jury’s
attention on Picardo’s criminal background and further
risked eliciting testimony from Picardo concerning
past crimes involving Provenzano.
In short, all of the Brady material involving govern-
ment benefits to Picardo, which Provenzano now
claims would have been used to cross-examine Picardo,
was linked either to Picardo’s past crimes or to his
participation in the witness protection program. Any
reference to such material would have been crippling
to Provenzano’s defense. That is why counsel for Pro-
venzano chose not to cross-examine Picardo in the
first place. Considering the limited extent of Picardo’s
direct testimony, it is understandable that experienced
defense counsel chose to ignore the witness rather than
open the door to new, highly damaging testimony. If
defense counsel in fact had wanted to show motive or
bias on Picardo’s part, the Brady material which was
disclosed to them would have permitted them to do so.
26In an affidavit sworn to March I, 1978, in support of the ex
parte order sought by the government, Steven K. Frankel, an Assist-
ant United States Attorney, stated that Picardo had been threatened
by Provenzano in 1975 over an unrealted matter; that Picardo
had been warned by associates that Provenzano had let a “contract”
for his death; that the government had reliable information in
December 1977 as to the identity of the individual who had accepted
the contract; that an associate of Provenzano had asked Picardo
whether he would be testifying at the trial, although there should
have been no reason for him to suspect that; that Picardo’s brother
had been contacted by Provenzano’s associates in an effort to locate
Picardo; and that the location of Picardo’s wife and children might
be known to the individual trying to carry out the contract to execute
Picardo. As a result, Frankel stated, “a grave security problem
for Picardo and his family arises once Picardo’s identity as a wit-
ness in this case becomes known.”
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47a
Appendix C
Opinion of United States Court of Appeals
But defense counsel, wisely in our view, steered clear
of the potential landmines.
We wish to make it clear that our decision on the
Brady issue here turns on the unique facts of this case.
We recognize that courts should not lightly infer that
undisclosed Brady material would not have been used
by the defense. Nevertheless, in view of all the circum-
stances of this case, we certainly agree with the trial
judge that the defense decision not to cross-examine
Picardo would not have been changed by the disclosure
of additional Brady material. Therefore, even applying
the strict standard of materiality to the undisclosed
Brady material here in question, we hold that Provenzano
was not denied a fair trial.2’
We have carefully considered all of appellant’s
claims of error aud find that they are without merit.
Appellant was convicted after a fair trial on the basis
of substantial evidence of a serious crime committed
more than five years ago.
Affirmed.
??Appellant’s claims with regard to the Jencks Act may be
disposed of summarily. Like the Brady material, we do not believe
that the Jencks Act material allegedly withheld would have been
used to cross-examine Picardo. Furthermore, Judge Metzner con-
cluded, after an in camera examination of the grand jury transcript
which was not given to the defense, that everything it contained
also was in the transcript they did receive. The claim that the govern-
ment failed to disclose notes of an interview with Picardo in an
unrelated matter is without merit; indeed, it appears that these
notes probably do not exist. Finally, the claim of non-disclosure
of notes relating to the Woodstock deal is wholly without merit.
Such notes on their face do not relate to the Woodsiock deal. Even
if they did, they did not have to be produced since the subject matter
of Picardo’s direct testimony did not refer in any way to the Wood-
stock deal.
48a
Appendix D
Order of United States Court of Appeals on Petition
for Rehearing and Suggestion for Rehearing En Banc
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
78-1099
At a Stated Term of the United States Court of
Appeals, in and for the Second Circuit, held at the
United States Court House, in the City of New York,
on the seventeenth day of March, one thousand nine
hundred and eighty.
Present! HONORABLE HENRY J. FRIENDLY
HONORABLE WILLIAM H. TIMBERS
HONORABLE ELLSWORTH
VANGRAAFEILAND
Circuit Judges.
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
Vv
ANTHONY PROVENZANO,
Defendant- Appellant.
A petition for a rehearing having been filed herein
by counsel for the Appellant
Upon consideration thereof, it is
Ordered that said petition be and hereby is DENIED.
A. DANIEL FUSARO
Clerk
wee We heii thiol
49a
Appendix D
Order of United States Court of Appeals on Petition
for Rehearing and Suggestion for Rehearing En Banc
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
78-1099
Ata stated term of the United States Court of Appeals,
in and for the Second Circuit, held at the United States
Court House, in the City of New York, on the seventeenth
day of March, one thousand nine hundred and eighty.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
V.
ANTHONY PROVENZANO,
Defendant-Appellant.
A petition for rehearing containing a suggestion
that the action be reheard in banc having been filed
herein by counsel for the Appellant, and no active
judge or judge who was a member of the panel having
requested that a vote be taken on said suggestion,
Upon consideration thereof, it is
Ordered that said petition be and it hereby is DENIED.
/s/ Irving R. Kaufman
Chief Judge
IRVING R. KAUFMAN
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