Appendix — Gambino v. United States
Supreme Court brief1996
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Supreme Coort, U.8.
FILED
BB °8 47 Nov 5 01595
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: THERE Of Tit CLERK
‘ IN THE
Supreme Court of the United States
OCTOBER TERM, 1995
THOMAS GAMBINO,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
APPENDIX TO PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT
MICHAEL ROSEN
17 Battery Place
New York, New York 10007
JUDD BURSTEIN
99 Park Avenue
New York, New York 10016
November 30, 1995
DAVID A. BARRETT
Counsel of Record
DUKER & BARRETT, L.L.P.
1585 Broadway
New York, New York 10036
(212) 969-5600
GERALD L. SHARGEL
1585 Broadway
New York, New York 10036
GRAHAM HUGHES
40 Washington Square South
New York, New York 10012
TABLE OF CONTENTS
PAGE
Appendix A
Opinion of United States Court of Appeals
for the Second Circuit in United States v.
Thomas Gambino (July 3, 1995) .............. la
Appendix B
Memorandum and Order of United States District
Court, Eastern District of New York (Glasser,
D.J.), denying petitioner’s motion for a new
trial (October 26, 1993). .............cc0ce, 32a
Appendix C
Memorandum and Order of United States District
Court, Eastern District of New York (Glasser,
D.J.), on certain pre-trial motions,
including motion to dismiss under Speedy
pe 82a
Appendix D
Order of United States Court of Appeals for the
Second Circuit denying petitioner’s motion
for rehearing (September 8, 1995) ............ 109a
Apperdix E
Judgment Including Sentence of United States
District Court, Eastern District of New
SOUR GM Oe PE ccc cc cc rc ee eee llla
Appendix F
Statutory Provisions Involved in this Appeal
ee a 115a
a ee 123a
J
la
Appendix A
Court of Appeals Decision
59 F.3d 353 (2d Cir. 1995)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 29 -- AUGUST TERM, 1994
(Argued August 31, 1994 Decided July 3, 1995)
Docket No. 93-1754
UNITED STATES OF AMERICA
Appellee,
v.
THOMAS GAMBINO,
Defendant-Appellant.
Before:
NEWMAN, Chief Judge, KEARSE and
CARDAMONE, Circuit Judges.
Thomas Gambino appeals from a judgment of
conviction for a RICO violation and RICO conspiracy under
18 U.S.C. § 1962 (c), (d), entered October 29, 1993, in the
United States District Court for the Eastern District of New
York (Glasser, J.). Appellant’s claims that his right to a
speedy trial was violated, Brady material was not turned over
by the government, and prejudicial testimony was admitted
into evidence are all without merit.
2a
Affirmed.
GERALD L. SHARGEL, New York, New York (Judd
Burstein, New York, New York, Graham Hughes,
New York, New York, Michael Rosen, New York,
New York, of counsel and on the brief), for
Defendant-Appellant.
GEOFFREY S. MEARNS, Assistant United States
Attorney for the Eastern District of New York,
Brooklyn, New York (James Orenstein, Laura A.
Ward, Assistant United States Attorneys, Zachary W.
Carter, United States Attorney for the Eastern District
of New York, Brooklyn, New York, of counsel), for
Appellee.
3a
CARDAMONE, Circuit Judge:
This appeal by Thomas Gambino from his judgment of
conviction for racketeering consisting of illegal gambling and
loansharking, and for conspiracy to engage in racketeering
raises several issues. The first is whether governmental delay
resulted in a violation of the Speedy Trial Act, 18 U.S.C. §§
3161-3174 (1988 & Supp. Il 1990) (Act). The second issue
relates to allegedly newly discovered evidence, consisting of
a letter tending to impeach the credibility of the government's
principal witness and a tape recording of the same witness,
alleged to contain exculpatory Brady material that was not
turned over to defense counsel. And the third issue is a
challenge to the prosecution’s redirect examination of the
government’s expert witness.
The Gambino organization, one of the most notorious
organized crime families in the United States, was the subject
of a series of investigations that involved an immense amount
of electronic surveillance. These investigations, which
culminated in the conviction of the organization’s leader, John
Gotti, along with other high-ranking members, was a much-
trumpeted triumph for law enforcement. One of these high-
ranking members investigated and prosecuted is appellant
Gambino, alleged by law enforcement officials to be a captain
in the organization that bears his family name. He complains
he was unfairly targeted by investigators because of that
name. The jury thought otherwise, not believing it was his
name at which the world grew pale, but the criminal activities
associated with it. After a lengthy trial, it found him guilty.
| ee
4a
I SPEEDY TRIAL ACT
We turn now to the first issue. The Speedy Trial Act
requires that a defendant’s trial begin within 70 days of the
date he was indicted or his first appearance before a judicial
officer, whichever date last occurs. Jd. § 3161(c){1). Most of
the legal issues surrounding the application of the Speedy
Trial Act have been long settled. But the complicated history
of the interrelated prosecutions of the Gambino organization
has led to a sequence of events without exact legal precedent.
The various justifications advanced by the government for the
delay warrant a somewhat detailed discussion. In the end,
although the government violated its duty to accord appellant
a speedy trial, the district court’s failure to dismiss the |
indictment we think was harmless error.
A. Chronology of Gambino’s Indictments and Trial
Gambino was indicted along with John Gotti, Salvatore
Gravano, and Frank Locascio on December 12, 1990. The
indictment charged appellant with two counts of racketeering
and racketeering conspiracy in violation of 18 U.S.C. §
1962(c) and (d). The predicate racketeering acts alleged were
violations of 18 U.S.C. §§ 2 and 1955 (illegal gambling
business) and 18 U.S.C. §§ 892 and 894 (loansharking). The
district court declared the case complex and entered an order
of excludable delay pursuant to § 3161(h)(8)(A) of the Act.
On June 26, 1991 Gambino moved to dismiss the
charges against him, asserting that a portion of the
government’s proof against him was derived from his
immunized testimony given before an earlier grand jury. The
trial judge deferred ruling on appellant’s request for an
evidentiary hearing pursuant to Kastigar v. United States, 406
U.S. 441 (1972), until the completion of his trial. The
Sa
hearing was ultimately held on July 16, 1993, at which time
Gambino’s Kastigar motion was denied.
In the meanwhile, after an adjournment of a trial date
requested by Gambino’s co-defendants, a scheduling conflict
arose because appellant’s trial in state court was set to begin
in January 1992. As a result of this conflict the government
had to move for a severance of Gambino’s trial -- to which he
acceded -- from that of his co-defendants. Gravano, another
of the original defendants, pled guilty and then entered into a
cooperation agreement with the government. The other two
defendants, Gotti and Locascio, went to trial and were found
guilty on April 2, 1992.
Four months later, on August 4, 1992, a superseding
indictment was filed against Gambino together with two new
co-defendants, Giuseppe Gambino and Philip Loscalzo. The
charges against appellant in this indictment were, except for
the addition of charges for violations of the Travel Act, 18
U.S.C. § 1952, as a predicate racketeering offense and as a
separate offense, identical to those in the Original. At a
pretrial status conference held on / just 21, 1992, the
government declared its readiness to proceed within 70 days.
Defendants requested a trial date after the second week of
January 1993 to allow the newly added defendants’ counsel
time to prepare. A trial date was set for February 1, 1993
and, due to the complexity of the case, the trial judge entered
a § 3161(h)(8)(A) order of excludable delay for the period
from August 21, 1992 to February 1, 1993.
Gambino’s counsel moved on September 24, 1992
either for a severance of his client’s trial or for an
adjournment of the trial date because that date conflicted with
other matters he had scheduled. Both motions were denied.
During the proceedings, Gambino’s co-counsel observed that
"if this case went in May instead of February it would not be
the end of the world." United States v. Gambino, 818 F.
6a
Supp. 541, 543 (E.D.N.Y. 1993). Two weeks later, on
October 9, defense counsel renewed his motion for
adjournment of the trial date, informing the court, "Our case
doesn’t involve any speedy trial problems." /d. at 544.
Despite this statement, a little less than two months later, on
December 7, 1992, Gambino moved for dismissal of the
superseding indictment because the government had violated
Gambino’s right to a speedy trial. The motion averred that
the speedy trial clock had run between the conclusion of the
Gotti trial on April 2, 1992 and the filing of the superseding
indictment filed four months later, on August 4, a period of
124 days, well in excess of the statutorily permitted 70 days
to commence trial. The motion was denied in a written
memorandum and order. See 818 F. Supp. 541.
B. Government Reasons for Delay
The government has advanced several reasons for its
delay in bringing Gambino to trial: (1) complexity of the case,
(2) tolling of the speedy trial clock by Gambino’s Kastigar
motion, and (3) waiver of the Act’s protections by defense
counsel’s tactics. The district court added another, (4) the
addition of the new co-defendants. Each of these proffered
reasons will be discussed in turn.
1. Complexity. In the above chronology the precise
period of delay complained of is the 124 days between the
April 1992 conclusion of the Gotti and Locascio trial on the
original indictment and the first pretrial conference on the
superseding indictment filed against Gambino in August 1992.
Gambino concedes that the Act was tolled after the first
indictment by the § 3161(h)(8)(A) order of excludable delay
on account of complexity entered on December 21, 1990.
The authorized exclusion requires the trial court to find and
explain why the interests of justice outweigh the interests of
the public and the defendant in a speedy trial. The court is
7a
vested with broad discretion to grant this exclusion when in
its view the case’s complexity makes it necessary to grant
counsel further time to prepare in order to ensure a fair trial.
See United States v. Rojas-Contreras, 474 U.S. 231, 236
(1985).
Gambino asserts that this tolling was effective only
until the end of the Gotti trial. He maintains the speedy trial
clock restarted after that trial and expired well before a new
finding of complexity and a corresponding order of excludable
delay were entered on August 21, 1992 with respect to the
superseding indictment. Neither appellant’s counsel nor the
government needed additional preparation time and, but for
the government’s severance motion, appellant continues, his
trial would already have been complete. Given that only the
newly added co-defendants Loscalzo and Giuseppe Gambino
required additional time, and the August 1992 adjournment of
trial order was entered chiefly on their behalf, Gambino
. Teasons, any complexities with respect to him no longer
counted after the Gotti trial ended.
The government insists, in response, that the case
against Gambino himself never ceased to be complex, and that
the second § 3161(h)(8)(A) order entered in August 1992
merely confirmed the continuing complexity of a case
involving hundreds of hours of video and audio tape
recordings tracking the structure and criminal activities of the
Gambino organization. Moreover, the government asserts,
appellant’s acquiescence in the August 1992 finding of
excludable delay due to complexity prevents him from now
raising an argument that the case against him was not
complex.
The inherent intricacy of the government’s case is not
a relevant factor in the present discussion. Were Gambino’s
trial postponed to the next millennium the proof would still be
complex. The length of an exclusion for complexity must be
not only limited in time, but also reasonably related to the
actual needs of the case. See United States v. Beech-Nut
Nutrition Corp., 871 F.2d 1181, 1198 (2d Cir.)(“indefinite
delay” not tolerated), cert. denied, 493 U.S. 933 (1989);
United States v. LoFranco, 818 F.2d 276, 277 (2d Cir. 1987)
(per curiam); accord United States v. Clymer, 25 F.3d 824,
828 (9th Cir. 1994) (continuance under § 3161 (h)(8)(A) may
not be open-ended).
Generally a trial court should set at least a tentative
trial date in granting a complex case exclusion. See Beech-
Nut Nutrition, 871 F.2d at 1198; LoFranco, 818 F.2d at 277
(order excluding time from speedy trial computation should be
“made in anticipation of a particular trial date”). In not doing
so, it risks having the exclusion “used either as a calendar
control device or as a means of circumventing the
requirements of the Speedy Trial Act.” LoFranco, 818 F.2d
at 277. Thus, we think the December 1990 order of
excludable delay is best understood as having been made in
contemplation of the commencement of trial on the original
indictment. Despite the fact that his own case had been
severed, Gambino’s speedy trial clock therefore ceased to be
tolled when that trial took place.
The later finding of complexity made in August 1992
failed to set forth the reasons why the case against Gambino
continued to be complex for purposes of the exclusion. Nor
did that order operate to cure any Speedy Trial Act violation
that might already have occurred since an order of excludable
delay has no retroactive effect. See United States v.
' Because Gambino asserts only that the speedy trial clock
restarted at the conclusion of the April trial, we need not, and do
not, express any opinion as to whether the relevant time to restart
the calculation would be the commencement, or the conclusion, of
that trial.
9a
Tunnessen, 763 F.2d 74, 77 (2d Cir. 1985). As appellant
correctly points out, the August 1992 order was entered on
behalf of co-defendants, granting their counsel time to get
ready; it did not reflect appellant’s counsel’s need to prepare.
As the government now concedes, the appropriate
procedure would have been for it to have requested a status
conference with respect to Gambino’s trial at the time its
motion for a severance was granted, and to have obtained a
new order of excludable delay. Alternatively, the first
indictment could have been dismissed until the superseding
one was prepared and filed, thus tolling the speedy trial clock
pursuant to § 3161(h)(3)(B)(6). None of those steps was
taken by the prosecution. We are unable now to recast the
procedure it followed so as to create a limitless opportunity
for prosecutorial procrastination.
2. Gambino’s Kastigar Motion. A second ground put
' forward by the government to excuse its delay is that
Gambino’s speedy trial clock was tolled when he filed a
pretrial Kastigar motion in June 1991. As discussed above,
decision on this motion was deferred until the conclusion of
his trial. It is the government’s contention that the entire
period of time during which this motion was pending is
excludable under the Act as “delay resulting from any pretrial
motion, from the filing of the motion through the conclusion
of the hearing on, or other prompt disposition of, such
motion.” 18 U.S.C. § 3161(h)(1)(F). Noting that the
government itself had requested the postponement of the
Kastigar hearing until the conclusion of the trial, the district
court rejected this argument as “disingenuous.” 818 F. Supp.
at 545.
The Supreme Court has said that the time from the
filing of a pretrial motion until the conclusion of a hearing on
that motion is excludable from the Act’s 70-day limitation
10a
without regard to whether the delay is or is not reasonably
necessary. See Henderson v. United States, 476 U.S. 321, 330
(1986); see also United States v. Matsushita, 794 F.2d 46, 51
(2d Cir. 1986). Hence, a defendant having made a motion
cannot complain if its disposition is not expeditious; a// the
time consumed in deciding the motion is attributable to the
defendant.
In the case at hand we are faced with the not
uncommon circumstance of a trial judge postponing an
evidentiary hearing until the conclusion of the case in chief.
In such circumstance, the pendency of the motion no longer
consumes the court’s time and attention. The motion has in
effect been tabled. Yet the government would have us rule
that the fact of a pending motion cancels the time
requirements of the Speedy Trial Act. Obviously were we to
so hold, perpetual postponements would become routine in
every case where a defendant seeks an evidentiary hearing.
The question is whether the Supreme Court’s ruling in
Henderson compels this result. Two circuits have recently
disagreed as to the answer. In United States v. Riley, 991
F.2d 120 (4th Cir.), cert. denied, 114 S. Ct. 392 (1993), the
Fourth Circuit ruled that when a hearing on a pretrial
suppression motion is deferred until after trial, all of the time
from the filing of the motion until its disposition is properly
excluded under § 3161(h)(1)(F). It said that a motion so
deferred does not “lose[e] its character as-a ‘pretrial’ motion
for purposes of § 3161.” 991 F.2d at 123. Riley also noted
that Fed. R. Crim. P. 12(b) “does not define the term ‘pretrial
by whether a motion is in fact decided before trial.” /d.
(Emphasis in original). In contrast, United States v. Clymer,
25 F.3d 824 (9th Cir. 1994), construing the same subdivision
of § 3161(h) stressed the word “resulting” rather than the
word “pretrial.” The Ninth Circuit thought it was error to
exclude all delay that coincides with the motion’s pendency
lla
because delay under the express terms of the Speedy Trial Act
may be excluded “only when it in some way results from the
pendency of the motion.” /d At 830.
We agree with the Ninth Circuit that Congress
envisioned that the speedy trial clock be tolled when the
expenditure of judicial resources to decide the motion would
interfere with the case expeditiously proceeding to trial, and
not tolled when the postponement of a pretrial motion until
after trial does not effect a trial court’s ability to proceed. We
believe therefore Gambino’s pretrial motion did not toll his
speedy trial clock from the time that the hearing on the
motion was postponed until after his trial. The government
may not therefore rely on the pendency of this motion to
excuse its delay. Were we to agree with the Fourth Circuit,
the pretrial motion would have tolled the speedy trial clock
and that would of course completely excuse the government’ s
delay.
3. Waiver. As a result of defense counsel’s trial
strategy, the government contends the Act’s protections were
waived. Whether the Act may be waived is presently an issue
of first impression in this Circuit. We join with every circuit
that has addressed the issue in finding that defendants
generally may not elect to waive the protections of the Act.
See United States v. Keith, 42 F.3d 234, 238 (4th Cir. 1994);
United States v. Saltzman, 984 F.2d 1087, 1091 (10th Cir.),
cert. denied, 113 S. Ct. 2940 (1993); United States v. Willis,
958 F.2d 60, 63 (Sth Cir. 1992); United States v. Kucik, 909
F.2d 206, 210-11 (7th Cir. 1990), cert. denied, 498 U.S.
1070 (1991); United States v. Berberian, 851 F.2d 236, 239,
(9th Cir. 1988), cert. denied, 489 U.S. 1096 (1989); United
States v. Ray, 768 F.2d 991, 998 n.11 (8th Cir. 1985); United
States v. Pringle, 751 F.2d 419, 434-35 (ist Cir. 1984);
United States v. Carrasquillo, 667 F.2d 382, 389 (3d Cir.
1982).
12a
The reason why a defendant cannot waive the time
constraints of the Speedy Trial Act is that the public has as
great an interest in a prompt criminal trial as has the
defendant. Certainly, the public is the loser when a criminal
trial is not prosecuted expeditiously, as suggested by the
aphorism, “justice delayed is justice denied.” The legislative
history of the Act confirms the importance of the non-waiver
rule. See Pringle, 751 F.2d at 433 (citing S. Rep. No. 212,
96th Congress Ist Sess. 28-29 (1979), reprinted in A.
Partridge, Legislative History of Title I of the Speedy Trial Act
of 1974, at 182 (Fed. Judicial Center 1980). Thus, when
Congress considered this issue, it limited waiver of the 70-day
speedy trial requirement to narrowly defined circumstances,
i.e., @ failure to move for dismissal prior to trial or prior to
the entry of a guilty or nolo contendere plea. 18 U.S.C. §
3162 (a)(2).
Nonetheless, several circuits have crafted an exception
to the non-waiver rule, holding that when defendant’s conduct
causes or contributes to a period of delay, that time may be
excluded from the running of The speedy trial clock. See
Pringle, 751 F.2d at 434-35 (exception necessary to prevent
defendants from “lulling the court and prosecution into a false
sense of security only to run around later and use the waiver-
induced leisurely pace of the case as grounds for dismissal”);
Kucik, 909 F.2d at 211 (“Where a defendant actively
participates in a continuance ... he cannot then ‘sand-bag’ the
court and the government by counting that time in a speedy
trial motion”); see also, e.g., United States v. Fields, 39 F.3d
439, 442-43 (3d Cir. 1993) (approving Pringle rule in dicta);
United States v. Kington, 875 F.2d 1091, 1108 (Sth Cir.
1989)(in dicta calling the Pringle exception a “sensible
maxim”’).
Where the public’s interest in swift justice is not
disregarded, such an exception makes good sense. The reason
l3a
is plain. The provisions of the Speedy Trial Act are not to be
mistaken for the rules of a game where defense counsel’s
cunning strategy may effectively subvert Congress’ goal of
implementing sound trial management. See United States v.
Vasquez, 918 F.2d 329, 337 (2d Cir. 1990); see also United
States v. Beech-Nut Nutrition, 677 F. Supp. 117, 118
(E.D.N.Y. 1987) (Speedy Trial Act not intended as a “trap”
for unwary courts and prosecutors), aff'd, 871 F.2d 1181,
1198 (2d Cir.), cert. denied, 493 U.S. 933 (1989). It is
possible, of course, that an overly broad application of the
exception could swallow the non-waiver rule, permitting a
waiver to be found whenever a defendant fails to object to
continuance. See Keith, 42 F.3d at 239; Willis, 958 F.2d at
64. Were such to result, it would subvert Congress’ aim that
delays be permitted only as provided for in the Act. /d. at 64.
As a result, those courts recognizing the exception
have placed tight restrictions on the finding of waiver. In
Willis, the Fifth Circuit applied the Pringle exception to
permit waiver under the very narrow circumstances where
“defendant requests a continuance under an erroneous
interpretation or application of one of the Act’s provisions and
the district court simply errs in its application of the Act to
the defendant’s request.” Jd. The Fourth Circuit, confronted
with a continuance granted at government request without
defense objection and although the trial court had failed to
perform an “ends of justice” analysis, found the Willis
exception too narrow. It held instead that if, upon review of
the entire record, an appellate court concludes defendant
affirmatively consented to a continuance, and that if the
reasons for such a continuance would be supported by an ends
of justice finding, then defendant may not assert a Speedy
Trial Act violation for the period of the continuance. Keith,
42 F.3d at 239-40.
l4a
We do not think the Pringle exception swallows the
non-waiver rule where appellant treats the protections of the
Speedy Trial Act as a game of strategy. The trial judge
plainly believed that Gambino’s counsel had engaged in
precisely this kind of gamesmanship, consistently requesting
or acceding to delays throughout the pretrial stage; then
making use of those same delays -- either asked for or
acquiesced in -- by demanding that his indictment be
dismissed. Four times in its opinion the district court cites
Gambino’s assertion that “the truth is that the Speedy Trial
Act is obviously designed to permit defendants to take
advantage of government errors.” 818 F. Supp. at 544, 547-
48.
Defense counsel never alerted the trial court or the
prosecutor to the potential speedy trial problem. On the
contrary, after the superseding indictment was returned,
counsel repeatedly sought to have the trail date postponed.
See 818 F. Supp. at 543-44. At a status conference held on
October 9, 1992, counsel specifically informed the court that
“our case doesn’t involve any speedy trial problems.” /d. At
544. Under some circumstances, such tactics might constitute
waiver-creating delay. But here the right to a speedy trial
guaranteed under the Act had already been violated, and
defense counsel’s delaying strategy may not be used as a
reason retroactively to waive this guaranteed right. See
Tunnessen, 763 F.2d at 77. If a violation occurred between
April and August 1992, as Gambino insists, his counsel’s later
requests for deferral in October 1992 could not undo the
earlier violation.
The October comments might properly have been
considered by the trial court when it made a factual finding
that appellant engaged in a consistent campaign of delay
throughout the pretrial period, commencing well before the
speedy trial clock was violated. Such a factual finding --
ee —m
15a
were it based on significant pre-violation acts -- might have
been sufficient to support the conclusion that Gambino had
waived his Speedy Trial rights. Despite making this finding,
there is no indication in the district court’s opinion that it was
conscious of the need to identify waiver occurring before the
violation occurred. Nor does the record contain adequate
support for its conclusion that Gambino’s campaign of delay
began before the alleged violation of the Act.
Further, we are able to identify only two instances of
pre-violation conduct possibly pointing to waiver. The first
is Gambino’s refusal to seek a severance from the Gotti trial
despite his upcoming state prosecution. This unusual strategy
might suggest a designed plan of forcing the government to
request the severance, thereby helping to preserve defendant’s
speedy trial claim. Had defense counsel himself requested a
severance due to Gambino’s conflicting state trial, as one
would ordinarily expect him to do, the speedy trial clock
might have been indefinitely tolled. Cf United States v.
Fernandez, 694 F. Supp. 858, 860-61 (S.D. Fla. 1988)
(defendant’s assertion of his right to severance a factor
weighing heavily in favor of excluding three to four year
delay arising in part from severance). Nonetheless, we do not
think the failure to ask for a severance supports a finding of
waiver. Even viewed as strategy, its chances of success were
remote. The government could have sought an order of
excludable delay under § 3161(h)(1)(D) of the Act, thereby
obtaining the exclusion of “delay resulting from trial with
respect to other charges against the defendant.” /d.
The second instance of pretrial conduct potentially
supporting a finding of waiver was cited by the trial court.
The government asserts without contradiction that Gambino
requested that his case be calendared after the summer of
1992, in effect seeking the very delay of which he now
complains. 818 F. Supp. at 544. However, it appears that
16a
Gambino made this calendaring request to the prosecutor, not
to the court; nor does it appear that the court was even
informed of defense counsel’s calendaring preference until
February 1993, well after the alleged date of violation had
passed. Thus, we are unable to conclude that this request
amounts in itself to Pringle-type conduct, “lulling the court
and prosecution into a false sense of security.” 751 F.2d at
434-35 (emphasis added).
In sum, a review of the record fails to uphold the trial
court’s view of Gambino’s counsel’s conduct. Absent a
finding that defense counsel’s deliberate pretrial strategy of
delay and his disclaimer of any speedy trial problems
preceded the government’s violation of the Act, there can be
no holding that such conduct amounted to waiver.
4. Addition of New Co-Defendants. An alternative
ground was advanced by the district court for refusing to
dismiss the indictment. The Act permits a “reasonable period
of delay when the defendant is joined for trial with a co-
defendant as to whom the time for trial has not run and no
motion for severance has been granted.” 18 U.S.C. §
3161(h)(7). Thus, the speedy trial clock in cases involving
multiple defendants begins with the running of the clock for
the most recently added defendant. See United States v. Pena,
793 F.2d 486, 489 (2d Cir. 1986); United States v. Piteo, 726
F.2d 50, 52 (2d Cir. 1983), cert. denied, 466 U.S. 905 (1984).
This rule promotes judicial efficiency by allowing the
prosecution flexibility in the combining of criminal trials. See
Pena, 793 F.2d at 489. The only inquiry made in such
multiple defendant cases is whether the delay is “reasonable.”
See, e.g., United States v. Tobin, 840 F.2d 867, 869-70 (11th
Cir. 1988) (looking to “totality of the circumstances prior to
trial” in concluding delay reasonable to achieve joint trial).
oaenind wat alll
re nit ements Pe ee ee ee ee er ee ewe aS
17a
Under the circumstances of this case the belated
joinder of new co-defendants took place too late to reset the
appellant’s speedy trial clock. Appellant’s case was joined
with those of Loscalzo and Giuseppe Gambino in the
superseding indictment only after the challenged delay. We
are unable to identify any cases holding that joinder
efiectively resets a defendant’s speedy trial clock to zero after
that defendant’s speedy trial right has already been violated by
delay. Such a result, moreover, would open the door to
prosecutorial abuse, permitting 70-day extensions to be
unilaterally obtained by means of sequentially indicting co-
defendants.
In sum, none of the justifications proffered by the
government or the district court adequately excuses the delay
in bringing Gambino to trial. The district court erred
therefore in not finding that the Speedy Trial Act was
violated.
C. Harmless Error
We proceed to consider whether such error was
harmless. As a preliminary matter, we must determine what
relief the district court ought to have granted, once a violation
of the Act occurred. If a criminal defendant is not brought to
trial within 70 non-excluded days from the filing of an
indictment, the mandatory remedy provided by the Act is
dismissal of the indictment on motion of the defendant,
although the court may, within its discretion, dismiss the case
without prejudice. 18 U.S.C.§ 3162(a)(2). Once an
indictment has been dismissed under the Act, any resultant
conviction must be overturned, and the defendant may be
retried only upon the obtaining and filing of a new indictment.
United States v. Perez-Reveles, 715 F.2d 1348, 1353 (9th Cir.
1983); United States v. Antonio, 705 F.2d 1483, 1486-87 (9th
Cir. 1983).
18a
At issue here is what relief is available to a defendant
when the original indictment’s time on the speedy trial clock
has run out, but in the meanwhile a superseding indictment
has been filed by the time defendant moves for dismissal of
the original indictment. The government contends that in such
a situation, the defendant is entitled only to dismissal of the
original indictment, that is, since he has already been
reindicted, to no relief at all. We disagree. A superseding
indictment inherits the clock of the original, see United States
v. Roman, 822 F.2d 261, 265-66 (2d Cir. 1987), so that any
violation of the original is imputed to it, and consequently it
is the later indictment that must be dismissed.
Nor should dismissal somehow resurrect any preceding
indictment. Although the relief originally requested by
Gambino was only dismissal of the superseding indictment
with reinstatement of and trail upon the original, that is not
the remedy provided for by the Act. The government violates
the Act at its peril. Forcing the government to reindict a
defendant after a Speedy Trial Act violation may seem a
“purposeless formalism,” 818 F. Supp. at 548, but it is the
sanction Congress saw fit to impose, and it was therefore the
district court’s duty to impose it.
We recognize that the district court said that had it
dismissed the indictment, it would have done so without
prejudice. In so ruling, the court correctly applied the
statutory factors governing prejudice: “the.seriousness of the
offense; the facts and circumstances of the case which led to
the dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of
justice.” 18 U.S.C. § 3162(a)(2). Given the seriousness of
Gambino’s crime and the sedulity of the prosecution, the court
correctly concluded that dismissal with prejudice would not
have been warranted. 818 F. Supp. at 547-48. Certainly,
Gambino’s counsel’s post-violation statement, “Our case
19a
doesn’t present any speedy trial problems,” 818 F. Supp. at
544, supports the conclusion that no prejudice was felt.
Given dismissal without prejudice, the government
would have been free to seek to have Gambino reindicted; and
even the appellant now concedes that reindictment would have
been inevitable. As the government had already managed in
fact to indict Gambino a total of three times on virtually
identical charges, see 818 F. Supp. at 542-43, we may
comfortably assume that a fourth indictment would have been
readily forthcoming. Thus, Gambino’s position today would
be no better even if the district court had dismissed the
superseding indictment.
We conclude, accordingly, that the error was harmless,
and that Gambino’s conviction must stand. Nonetheless, we
hasten to add that our holding is not a signal that affirmance
of a district court’s failure to dismiss an indictment on
' harmless error grounds, so long as a “without prejudice”
analysis is undertaken as mandated by the Act, will routinely
follow. On the contrary, since we review the question of
prejudice de novo, non-dismissal in the event of a violation
will always risk nullifying an entire trial. Reversible error, in
a case as complex and hard-fought as this one, would have
been costly indeed.
Il NONDISCLOSED EVIDENCE
A. Gravano’s Testimony and His Alleged Perjury
The trial of Thomas and Giuseppe Gambino began on
April 19, 1993, Loscalzo’s trial having been severed due to
his poor health. A key part of the government's case was the
testimony of Salvatore Gravano, who was originally indicted
with appellant, but later cooperated with the government at a
series of criminal trials involving various members of the
Gambino organization. Aside from Gravano’s crucial
20a
testimony, the bulk of the government’s case consisted of
circumstantial evidence obtained from electronic surveillance
of the Gambino organization’s operations. All the proof
presented was extensively reviewed by the district court in a
published opinion, United States v. Gambino, 835 F. Supp.
74, 77-85 (E.D.N.Y. 1993) (denying Thomas Gambino’s
motion for a new trial). Gravano’s testimony, according to
the district court’s assessment, connected only Thomas
Gambino with the Connecticut loansharking operation, thus
tending to exonerate Giuseppe Gambino. /d. at 83-85. The
surveillance evidence against Thomas Gambino was also
markedly more substantial than that against Giuseppe
Gambino. /d. at 77-81.
On May I1, 1993 the jury acquitted Giuseppe
Gambino and convicted appellant Thomas Gambino. The next
day, in a separate case, United States v. Conte, No. 93 CR 85
(ILG) (E.D.N.Y. guilty plea entered June 20, 1994), the
government submitted a letter (the Conte letter) to the district
court in support of its motion to detain defendant Pasquale
Conte pending trial. The letter disclosed that Gravano had
engaged with Conte -- another captain in the Gambino
organization -- in a conspiracy to import and distribute heroin.
As a result of this disclosure, Gambino filed a motion for a
new trial on the basis of newly discovered evidence tending
to impeach the credibility of a government witness.
Following oral argument on this motion on October 6,
1993 appellant alerted the court to the existence of additional
newly discovered impeachment evidence. During pretrial
discovery in yet another Gambino organization case, United
States v. Crea, 853 F. Supp. 72 (E.D.N.Y. 1994), defense
counsel had received materials developed in 1989 from
electronic surveillance conducted by the Kings County District
Attorney’s Office and the Federal Bureau of Investigation
(FBI) at a construction trailer on 64th Street in Brooklyn,
ees die eal.
2la
New York. Included among these materials was a transcript
of witness Gravano instructing an associate in the art of
testifying falsely to a grand jury (the Trailer Tape):
You're called to the grand jury. You gotta
take the fifth. Alright so far? Now they give
you immunity. What do you do?
Now I told him there is three things: common
sense, common sense is one part, seventy-five
percent of the answers. Another ten or fifteen
percent... (Inaudible) you gotta dance and
bob and weave. One, I didn’t remember, I
don’t think so, or to the best of my knowledge.
Okay? Let’s say fifteen percent, so that’s
seventy-five percent, so we’re up to ninety
percent. Ten percent, you out and out lie.
Gambino’s counsel claimed that because the FBI assisted in
the investigation in which the Trailer Tape was obtained, the
government obviously knew of its existence and was obligated
to turn it over to Gambino as exculpatory material pursuant to
Brady v. Maryland, 373 U.S. 83 (1963). The government
submitted responding affidavits stating that none of the
Assistant United States Attorneys who worked on the
prosecution of Gambino or any related cases were aware of
the existence of the Trailer Tape before being alerted to it by
defense counsel.
Gambino moved under Rule 33 for a new trial “in the
interests of justice” on the grounds that the government’s
failure to disclose this newly discovered exculpatory Brady
material entitled him to such relief. Fed. R. Crim. P. 33. The
district court on October 26, 1993 denied the motion. 835 F.
22a
Supp. at 96. Appellant appeals from the denial of this
motion.
B. Motion for a New Trial
Because motions for a new trial are disfavored in this
Circuit the standard for granting such a motion is strict; that
is, newly discovered evidence must be a sort that could, if
believed, change the verdict. See United States v. Gilbert,
668 F. 2d 94, 96 (2d Cir. 1981), cert. denied, 102 S. Ct. 2014
(1982). The trial court has “broad discretion” to decide Rule
33 motions based upon its evaluation of the proof produced,
see United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir.
1992), and its ruling is deferred to on appeal because, having
presided over the trial, it is in a better position to decide what
effect the newly discovered materials might have had on the
jury, see United States v. Petriollo, 821 F.2d 85, 88 (2d Cir.
1987). This is particularly true where, as here, the outcome
of the trial depended upon a complicated conglomeration of
surveillance evidence regarding the structure of a vast criminal
conspiracy.
The district court summarized the extensive evidence
upon which Gambino’s conviction was based in its exhaustive
published opinion. 835 F. Supp. at 77-85. Appellant’s appeal
hinges in large part on attacking the soundness of that court’s
assessment of the trial evidence. We will not disturb a trial
court’s factual findings regarding the nature and weight of the
evidence, unless those findings are clearly erroneous. See
United States v. Diaz, 922 F.2d 998, 1006 (2d Cir. 1990),
cert. denied, 500 U.S. 925 (1991).
1. The Conte Letter
The Conte letter implicates Gravano in narcotics
trafficking. The letter detailed Gravano’s attempt, at the
23a
request of John Gotti, to obtain from Conte some of the
proceeds from his heroin importing schemes; the attempt
never achieved fruition because of the intervening arrests of
Gravano and Gotti. Plainly this letter is Brady material that
tends to impeach the credibility of a government witness and,
as such, it should have been made available to the defense in
appellant’s trial. See Giglio v. United States, 405 U.S. 150
(1972).
Nevertheless, information not disclosed to the defense
creates constitutional error warranting a new trial only when
that information is material, i.e., when it “creates a reasonable
doubt that did not otherwise exist.” United States v. Agurs,
427 U.S. 97, 112 (1976). To determine whether a defendant
was deprived of his due process right to a fair trial, the court
must evaluate the omission in the light 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.” Jd. at 112-13. In United States v. Bagley, 473
U.S. 667 (1985), the Supreme Court restated the Agurs test
for deciding whether nondisclosed impeachment evidence is
“material in the sense that its suppression undermines
confidence in the outcome of the trial.” /d. at 678. It
explained that materiality exists “only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Jd. at 682.
Recognizing the difficulty of meeting the Agurs-Bagley
“reasonable probability” standard of materiality, Gambino
seeks to invoke a less rigorous test by declaring that the Conte
letter demonstrates that Gravano committed perjury on the
stand. Gravano was not specifically asked and so did not
specifically deny that he had ever engaged in drug dealing.
It was in earlier Gambino organization trials -- at which he
appeared as a witness -- that Gravano declared that the rules
24a
of the Gambino organization prohibited dealing in narcotics.
See United States v. Gotti, No. 90 CR 1051 (S-I) (ILG)
(E.D.N.Y. April 2, 1992); United States v. Pape, No. 92 CR
0159 (ILG) (E.D.N.Y. November 6, 1992); United States v.
Orena, 821 F. Supp. 870, 871 (E.D.N.Y. 1992).
When the prosecution knowingly makes use of
perjured testimony, the standard for materiality is reduced to
a showing of “any reasonable likelihood that the false
testimony could have affected the judgment of the jury.”
Agurs, 427 U.S. at 103; see also Bagley, 473 U.S. at 678;
United States v. Stofsky, 527 F.2d 237, 245 (2d Cir. 1975)
(without false testimony jury might have reached different
result), cert. denied, 429 U.S. 819 (1976). In the instant case
the Conte letter -- not turned over to defense counsel --
contradicted statements regarding the drug business to which
Gravano had testified in other trials. Even assuming Gravano
perjured himself and assuming perjury in other trials would be
relevant to Gravano’s testimony in this trial, we do not believe
the Conte letter material in the constitutional sense. Had
defense counsel had access to the letter, we do not believe it
would likely have affected the outcome of the trial, or, in
other words, that with the letter in evidence Gravano’s
credibility would have been so diminished that Gambino
would not have been convicted.
But we are unpersuaded that any perjury occurred.
Gravano had stated under oath in those earlier trials of
Gambino organization members that he and the Gambino
organization had a principle of not dealing in drugs. Yet, that
policy statement is not flatly inconsistent with his having
become involved on his own, and Jehn Gotti’s, behalf in a
heroin importation conspiracy. It is at most evidence that
Gravano did not adhere to the rules of the organization of
which he was a high-ranking member. Nevertheless even a
direct conflict in testimony does not in itself constitute
25a
perjury. See United States v. Bortnovsky, 879 F.2d 30, 33 (2d
Cir. 1989); see also United States v. Sanchez, 969 F.2d 1409,
1413 (2d Cir. 1992). Consequently, the lower standard of
materiality is not triggered.
The more rigorous Agurs-Bagley test applied so that
reversal is warranted only if there is a reasonable probability
that disclosing the Conte letter to the defense would have
resulted in a different verdict. That test has not been met. As
the district court noted, “Gravano’s plea agreement with the
government and his criminal past were dissected and laid
before the jury on cross-examination -- a criminal past which
included nineteen murders, labor racketeering, extortion,
shylocking, obstruction of justice and gambling.” 835 F.
Supp. at 88. Proof before the jury that this witness was
involved in an abortive conspiracy to import heroin and that
he violated the policies of his own organization would
scarcely have rendered his gloomy past worse.
Nondisclosure of cumulative evidence tending only to
further impeach a witness’ general credibility is not grounds
for granting a Rule 33 motion. See United States v. Helmsley,
985 F.2d 1202, 1210 (2d Cir. 1993); United States v. White,
972 F. 2d 16 (2d Cir.), cert. denied, 113 S. Ct. 669 (1992).
Moreover, the district court’s finding -- based on its thorough
review of the evidence -- that Gambino’s conviction rested on
a sound evidentiary basis exclusive of Gravano’s testimony,
is a factual finding entitled to deference on appeal. The proof
of this witness’ additional wrongdoing revealed in the Conte
letter therefore provides no basis for disturbing the jury’s
verdict.
In light of this holding we need not decide the
questions of whether a defendant may obtain the advantage of
the less burdensome standard simply by showing that a
government witness has given perjured testimony at related
26a
trials; or whether, as the government urges, defense counsel
had access to the essential fact of Gravano’s drug involvement
so that the Conte letter was not “suppressed.” See United
States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993); United
States v. Esposito, 834 F.2d 272, 275 (2d Cir. 1987); United
States v. Gaggi, 811 F. 2d 47, 59 (2d Cir.), cert. denied, 107
S. Ct. 3214 (1987).
2. The Trailer Tape
We turn now to a consideration of the second alleged
Brady violation, the suppression of the Trailer Tape transcript.
The Trailer Tape is quintessential Brady material. Rarely
does a defense attorney have such a useful weapon for
attacking the credibility of a government witness. Gravano is
recorded on the Trailer Tape as giving this direct instruction
for confounding a grand jury: “Ten percent of the time, you
out and out lie.”
But in this case defense counsel had other weapons
ready at hand. As already noted, Gravano was cross-
examined at length and with “surgical precision,” 835 F.
Supp. at 88, about his extensive criminal history. Defense
counsel referred to Gravano in his opening statement as a
“serial killer” who had “participated in the slaughter and
deaths of nineteen human being.” Gravano committed at least
two of those murders in order to prevent the victims from
testifying before a grand jury, and he admitted other acts of
obstructing justice, including bribing jurors, in an attempt to
frustrate the prosecution of Gotti. 835 F. Supp. at 95. With
this grim history laid before them, the jury had a fair
opportunity to evaluate the witness’ credibility. The existence
of the Trailer Tape does nothing to undermine confidence in
Gambino’s conviction, nor to suggest any “reasonable
probability” that the jury would have reached a different
verdict had the transcript been available to them. The Trailer
27a
Tape does not therefore amount to material evidence the
suppression of which would warrant a new trial.
Finding a lack of materiality, we need not decide
whether the Trailer Tape was “suppressed,” in other words,
whether the knowledge of the tape’s existence should be
imputed to the prosecution, based on its having been available
to the F.B.1. in 1989. Nonetheless, it should be noted that we
recently addressed this precise question in the context of
Gotti’s and Locascio’s Brady appeal -- also predicated on
nondisclosed evidence tending to impeach Gravano -- holding
“{wje will not infer the prosecutors’ knowledge simply
because some other government agents knew about the
report.” United States v. Locascio, 6 F.3d 924, 949 (2d Cir.
1993) (citing Morgan v. Salamack, 735 F.2d 354, 358 (2d Cir.
1984) and United States v. Quinn, 445 F.2d 940, 944 (2d Cir.)
(Holding that knowledge on the part of one arm of
government does not imply knowledge by the prosecutor),
_ cert. denied, 404 U.S. 850 (1971)), cert. denied, 114 S. Ct.
1645 (1994). Crediting the government’s affidavits, the trial
court found in addition as a factual matter that the prosecution
in Gambino’s case did not know of the Trailer Tape’s
existence.
It thus appears that there existed an adequate basis in
law and fact for the finding that the Trailer Tape was not
“suppressed.” This finding is not however essential to our
holding, which is based solely on the non-materiality of the
tape as constituting cumulative impeachment evidence.
Consequently, we rule that the nondisclosure of the Trailer
Tape does not amount to suppression of material evidence
warranting a new trial.
28a
III SCOPE OF RE-DIRECT EXAMINATION
A. Agent Gabriel’s Testimony
The final issue relates to the propriety of the
prosecutor’s re-direct examination of a government witness.
George Gabriel, an FBI agent qualified as an expert witness
on the structure and methods of organized crime
organizations, took the stand to interpret the tape recordings
obtained in the course of electronic surveillance. The agent
described the structure of the Gambino organization and the
procedure by which the joint FBI and New York State
Organized Crime Task Force investigation conducted
surveillance of the Bergin Hunt & Fish Club in Ozone Park,
Queens, New York -- a Gambino organization haunt. He then
reviewed the tape recordings with the jury, identifying cryptic
references to organization members and their criminal
activities.
Cross-examination of the agent by defense counsel
elicited the facts that earlier surveillance tapes made in 1983
and 1989-90, as well as an earlier search of Gambino’s office,
had failed to reveal any evidence connecting him with
loansharking or organized gambling. In fact, those tapes had
implicated appellant in unrelated offenses concerning the
garment industry, and had resulted in his entering a guilty plea
in a previous New York State proceeding. The earlier tapes
had already been ruled inadmissible in the instant case. But
by the fact that they had been made, defense counsel was able
to suggest that the government had made Gambino the target
of lengthy, fruitless, harassing and perhaps illegal surveillance.
The trial court believed this cross-examination was
designed to deceive and mislead the jury. Hence, it ruled that
the prosecution would be permitted on re-direct to attempt to
dispel any misconceptions created by this line of questioning.
The government was prohibited from developing the fact that
29a
previous investigations against Gambino had resulted in his
guilty plea in a state proceeding, even though the cross-
examination had opened the door for proof respecting such
prior conviction. The scope of re-direct instead was limited
to demonstrating that the earlier surveillance was not illegal,
oppressive, unjustified, or targeted solely against Gambino.
On re-direct the agent stated the earlier investigations
had resulted in 11 other indictments involving 30 defendants.
He also testified that 12 or 13 persons had already been
convicted as a result of those tapes, with further indictments
anticipated. Defense requests to cure the prejudicial
impression of this testimony by informing the jury that
Gambino had been acquitted in one of the cases resulting from
the earlier series of tapes were denied. But the trial court --
with the approval of defense counsel -- gave the jury the
following limiting instruction:
I want to make it just as clear as I can
possibly make it whether there were convictions
with respect to investigations pertaining to other
persons has no bearing upon this case.
The determination which the jury will
make in this case will be predicated solely upon
_ the evidence as it is presented in this case, and nq
inference should be drawn by the jury regarding
these defendants from the fact that in other cases
other persons may have been convicted.
Giuseppe Gambino’s counsel, by contrast, in questioning the
agent was allowed to enquire whether his client had been
prosecuted in any of the previous investigations, and obtained
an answer that he had not. Appellant’s counsel did not object
to this testimony.
30a
After the conclusion of the agent’s testimony, defense
counsel requested that the agent be recalled in order to elicit
the fact of Gambino’s former acquittal. This request was
denied. Gambino contends on appeal that his conviction
should now be reversed because of the unfair prejudice
resulting from these evidentiary rulings.
B. Admission of Commten Test
A district court has broad discretion to make a
determination that the probative value of evidence outweighs
the risk that its admission will result in unfair prejudice. See
United States v. Moon, 718 F.2d 1210, 1233 (2d Cir. 1983),
cert. denied, 466 U.S. 971 (1984). Evidentiary rulings are not
grounds for reversal except where they are made arbitrarily or
irrationally. See United States v. Blanco, 861 F.2d 773, 781
(2d Cir. 1988), cert. denied, 489 U.S. 1019 (1989).
Otherwise inadmissible testimony may be received on re-direct
in order to rebut a false impression created by an opposing
party during cross-examination. See United States v. Rosa, 11
F.3d 315, 335 (2d Cir. 1993); United States v. Wiley, 846 F.
2d 150, 156 (2d Cir. 1988). Defense counsel’s cross-
examination here was deliberately designed to foster a false
impression in the jury’s mind that for years the government
had been unsuccessfully and abusively investigating Gambino.
It was this misimpression that the prosecutor was allowed to
correct on re-direct by asking the agent about the legality and
success of the former surveillance operations.
Appellant contends this corrective attempt may have
persuaded the jury that he was one of the unnamed persons
convicted as a result of the earlier investigations. In allowing
the jury to form such a belief, he insists, the court improperly
infringed his due process right “to be tried solely on the basis
of evidence presented to the jury.” United States v. Young,
470 U.S. 1, 18 (1985). We recognize that evidence of a
3la
defendant’s prior conviction is inadmissible unless it relates to
a disputed issue and unless, further, its probative value
outweighs its prejudicial effect. Fed. R. Evid. 403, 404(b);
United States v. Figueroa, 618 F.2d 934, 939 (2d Cir. 1980).
We reject the notion that admitting this corrective
testimony was an abuse of discretion. Under the
circumstances, the trial court might well have been justified
in allowing the introduction of evidence pertaining to
Gambino’s earlier guilty plea. But it did not. Rather, the
scope of the government’s questioning was carefully
circumscribed, and the jury was promptly given a limiting
instruction, approved by Gambino’s counsel, as to what
inferences could be drawn from those facts. Moreover, even
if it were error to admit this proof, such error would have
been harmless in light of the overwhelming record evidence
of Gambino’s guilt. See United States v. DeVillio, 983 F.2d
1185, 1195 (2d Cir. 1993); United States v. LaSanta, 978 F.2d
1300, 1306 (2d Cir. 1992).
CONCLUSION
Accordingly, for the reasons stated the judgment of
conviction is affirmed.
32a
Appendix B
District Court Decision
on Motion for New Trial
835 F.Supp. 74 (E.D.N.Y. 1993)
UNITED STATES of America, Plaintiff,
v.
Thomas GAMBINO, Defendant.
No. CR-90-1051 (S-3).
United States District Court,
E.D. New York.
Oct. 26, 1993.
Defendant, who was convicted on racketeering charges,
moved for new trial. The District Court, Glasser, J., held that:
(1) defendant was not entitled to new trial for government’s
failure to disclose alleged perjury of its witness which
occurred in another criminal trial; (2) government was not
required under Jencks Act to produce notes taken by
government agent during interview of witness; (3) defendant
was not entitled to new trial for government’s failure to
disclose those notes as alleged_ Brady material; (4)
knowledge of potential Brady material obtained in
investigation other than one which led to charges against
defendant could not be imputed to government prosecutors in
defendant’s case; and (5) evidence supported conviction.
Motion denied.
Laura A. Ward, Geoffrey Mearns, Asst. U.S. Attys.,
Brooklyn, NY, for plaintiff.
33a
Michael Rosen, New York City (Judd Burstein, Gerald
L. Shargel, Shargel & Futerfas, New York City, of counsel),
for defendant.
Jay Goldberg, New York City.
MEMORANDUM AND ORDER
GLASSER, District Judge:
The defendant was convicted upon a trial by jury of
Racketeering, in violation of 18 U.S.C. Sec. 1962(c) (Count
One), the predicate acts of racketeering for which were
violations of 18 U.S.C. Sec. 1955 (illegal gambling business);
18 U.S.C. Secs. 892 and 894 (extortionate extensions and
collections of credit); 18 U.S.C. Sec. 1952 (interstate travel
and communication incident to illegal gambling and
loansharking), and of Racketeering Conspiracy in violation of
18 U.S.C. Sec. 1962(d) (Count Two). His co-defendant,
Giuseppe Gambino, was acquitted on both counts. Jury
selection commenced on April 19, 1993 and a verdict was
rendered on May 11, 1993. The proceedings are recorded in
a transcript of approximately 1700 pages.
The defendant thereafter moved this court for a new
trial pursuant to Rule 33, Fed.R.Crim.P. His motion is
bottomed upon two grounds: (1) the failure of the
government to disclose that Salvatore Gravano perjured
himself concerning his personal involvement in narcotics
trafficking, and (2) the verdict was against the weight of the
evidence.
As regards the first basis of his motion, he contends
that "this is a case which hinged upon the credibility of
Salvatore Gravano.". Memorandum of Law in Support of
Defendant’s Motion for a New Trial ("Def’s Mem." at 2). In
furtherance of that contention, he asserts that the “heart of the
34a
defense were the claims that (a) Gravano had lied about
perhaps the most crucial event in the case--an alleged meeting
with Thomas Gambino to discuss Anthony Megale’s guilty
plea--and (b) that the government was covering up for him.”
This assertion is elaborated by alluding to the government’s
reference to Gravano’s cooperation agreement, the continued
efficacy of which was conditioned upon his truthfulness and
to Gravano’s testimony two weeks previously in another trial
in the Southern District of New York in which, the defendant
claims, Gravano lied under oath.
Prior to discussing the legal underpinnings of the
defendant’s motion, it would be useful to make a factual
assessment of the defendant’s averment that his case "hinged
upon the credibility of Salvatore Gravano,” that his testimony
"was, as a functional matter, the sine qua non of the
government’s cases” and that it is "the only way to harmonize
Thomas Gambino’s conviction and Giuseppe Gambino’s
acquittal” (Def’s Mem. at 3).
Prior to making that assessment, however, it is vital to
note and remember that the defendant, Thomas Gambino, was
indicted in December, 1990 together with Salvatore Gravano,
John Gotti and Frank Locascio. The charges against the
defendant in that indictment, from which he was eventually
severed, are virtually identical to the charges in the
superseding indictment on which he was tried and convicted.
Had the defendant not been severed and had Gravano not
elected to cooperate with the government, the defendant would
have been tried together with Gravano and the other
co-defendants.
I
The first significant evidentiary reference to the
defendant was presented by the government in an intercepted
and recorded conversation between John Gotti and George
35a
Remini on January 17, 1986 in the Bergin Hunt and Fish
Club. George Gabriel, a Special Agent of the F.B.I. testified
regarding that conversation. Agent Gabriel has been assigned
to the Gambino Squad of the F.B.I. since 1985 and was
qualified as an expert witness on organized crime families,
their structure, methods, means of operation and on the
terminology used by members of organized crime families.
He identified John Gotti as the Boss of the Gambino
Organized Crime Family (Tr. at 194), George Remini as a
made member in that family (Tr. at 203), Tommy DeBrizzi as
an acting captain in the Gambino Family (Tr. at 206) and
Tommy Bilotti as the underboss of the Gambino Family (Tr.
at 209). During the course of that conversation Gotti
informed Remini that the defendant sent for DeBrizzi on three
occasions and DeBrizzi never came, explaining his failure to
do so by having been given discretion by Tommy Bilotti to
respond or not to the defendant’s summons (Tr. at 208-09).
Gotti went on to say that he will have the defendant handle
the problem with DeBrizzi (Tr. at 211). Of particular
significance is Gotti’s statement to DeBrizzi that the
defendant’s people, (Phil Loscalzo and the co-defendant,
Giuseppe Gambino) (sometimes referred to hereafter as Joe
Gambino) are helping him run DeBrizzi’s operation in
Connecticut (Tr. at 212) and that he would demote DeBrizzi
from an acting captain to soldier and assign him to the
defendant. (Tr. at 217-18). Other attributions to Gotti in the
conversation as testified to by Agent Gabriel make it plain
that the defendant Thomas Gambino was a captain in the
Gambino Family (Tr. at 222-24), and photographs received in
evidence depict persons identified as DeBrizzi (GX 902-A);
Giuseppe Gambino (GX 902-B and C); George Remini, Phil
Loscalzo and the defendant (GX 902-D and E); George
Remini and the defendant (GX 902-F and G) and Anthony
Megale (GX 902-H). (Tr. at 226-28). These photographs
were taken on January 22, 1986 on Bogart Avenue in the
Bronx, N.Y. (Tr. at 226-27). There are approximately four
passing references to acquitted co-defendant Giuseppe
36a
Gambino on that recorded conversation compared to
approximately three times as many to the defendant Thomas
Gambino which are of more than passing significance.
The government also introduced an intercepted and
recorded conversation in which the participants were John
Gotti, Frank Locascio and Salvatore Gravano on January 4,
1990 in an apartment above the Ravenite Club at 247
Mulberry Street in New York City (Tr. at 229). Agent
Gabriel explained a reference to one Pietro Angelo and
Tommy Gambino as signifying that Angelo, deceased in 1985,
was a member of this defendant’s crew. (Tr. at 255-57, 261).
As the conversation continued and the names of many others
were mentioned in a variety of contexts, one Carmine
Sciandra was identified as a member of Tommy Gambino’s
crew (Tr. at 279) and Tommy Gambino was described as
laughing when Gotti admonished lawyers (Tr. at 284). Not
once during the playing of this recorded conversation was the
name of Giuseppe Gambino mentioned.
An intercepted and recorded conversation in an
apartment above the Ravenite Club on January 17, 1990 was
played. Among the participants heard on this recording were
Gotti, Locascio, Gravano and Joseph ("Joe Butch") Corrao.
In the course of this conversation Gotti is heard to declare that
Tommy Gambino is a "skipper," meaning a captain in the
Gambino Family. (Tr. at 116, 289). Not once during the
playing of this recorded conversation was the name of
Giuseppe Gambino mentioned.
A conversation among Gotti, Gravano and Locascio on
November 30, 1989 in the apartment above the Ravenite
which was intercepted and recorded was played for the jury.
On that recording, Gotti is overheard relating a conversation
at which Thomas Gambino was present in which accusations
were voiced against Neil Dellacroce, a captain in the Gambino
Family (Tr. at 307) and in which he related a stated intention
37a
of Paul Castellano to put "young soldiers" ... "in the crews of
Tommy Gambino and Joe Butch Corrao." (Tr. at 309). Not
once during the playing of this recorded conversation was the
name of Giuseppe Gambino mentioned.
A conversation between Gotti and Giuseppe Gambino
in the hallway of 247 Mulberry Street on December 14, 1989
was intercepted, recorded and played for the jury. The subject
of the conversation was the need to provide a lawyer for Tony
Megale who was indicted in Connecticut on December 6,
1989 and arrested on the following day, the expenses a trial
would entail, and who would provide for payment of those
expenses. (Tr. at 324-26).
Five days later, on December 19, 1989, a conversation
between Gotti and Thomas Gambino in that same hallway was
intercepted, recorded and played for the jury. The discussion
once again centered about the representation of Tony Megale.
{Tr. at 327). The testimony of Agent Gabriel regarding that
conversation would have permitted the jury to find that
Tommy Gambino was going to pay for the services of Tony
Megale’s lawyer (Tr. at 328, 332); that Tommy Gambino was
involved with loansharking (Tr. at 329); that Tommy
Gambino was the captain of a crew of which Giuseppe
Gambino was a member (Tr. at 330); that Tommy Gambino
was keeping Gotti apprised of the events surrounding the
indictment of Tony Megale (Tr. at 333); that he pledged his
fealty to John Gotti (Tr. at 335, 336); and that Gotti was
pleased that Tommy Gambino was available to assist Tony
Megale (Tr. at 336).
After the recorded conversations were played for the
jury, the government then presented surveillances of the
activity in the vicinity of the Ravenite Social Club which were
captured on video tape. Thomas Gambino was shown
entering and leaving that club on December 19, 1989 and
Giuseppe Gambino was then shown on December 14 and 19,
1989.
The cross-examination of Agent Gabriel established
that he was never told that Giuseppe Gambino was ever seen
at any gambling operation in Connecticut, nor had he ever
been told that Giuseppe Gambino was the recipient of a
delivery of money in Connecticut (Tr. at 458-60); that he was
involved in money lending (Tr. at 426-32, 442-44); or that he
was ever mentioned in any conversation emanating from the
Connecticut gambling operation. (Tr. at 431). The
cross-examination also revealed that there was no evidence
that Tony Megale ever gave any money to Giuseppe Gambino
(Tr. at 435); that he was never mentioned in any conversation
intercepted in the home of Paul Castellano as being involved
in Connecticut gambling or loansharking (Tr. at 437); there
was no evidence that Giuseppe Gambino ever delivered any
money to John Gotti (Tr. at 442-43); Salvatore Gravano was
never overheard to say that Giuseppe Gambino delivered
money to Gotti from Connecticut gambling or loansharking
operations (Tr. at 444); there was no evidence that Giuseppe
Gambino ever gave any money to Megale’s lawyer (Tr. at
473); and he was never heard in any conversations regarding
Megale’s plea (Tr. 480-81).
Salvatore Gravano was the next witness called to
testify for the government. He identified the defendant as a
captain in the Gambino Family (Tr. at 599, 610); George
Remini as his acting captain (Tr. at 612); Skinny Phil,
Carmine Sciandra, Petey Castellano, Sal (LNU), Tony Megale,
Giuseppe Gambino and Tommy DeBrizzi as members of the
defendant’s crew (Tr. at 613, 615, 641). He testified that the
defendant was involved in running the Connecticut faction of
the Family through Tony Megale (Tr. at 644) who he saw at
the Ravenite a few times with the defendant and Giuseppe
Gambino. (Tr. at 645). That faction was involved in
gambling, loansharking and labor racketeering. (Tr. at 645).
39a
He never saw Megale turn in any money to any member of
the Gambino family and if Megale ever did, Gravano didn’t
know to whom. (Tr. at 647-48). In accordance with Family
protocol, each captain, including the defendant, contributed
$3,000 as a Christmas present fer John Gotti. (Tr. at 648).
Gravano never received any money from Giuseppe Gambino
in connection with Connecticut gambling or loansharking and
did not know whether Giuseppe Gambino was involved in any
way in those Connecticut activities. (Tr. at 648-49).
After the arrest and indictment of Tony Megale, he
discussed pleading guilty with the defendant, who then
presented that possibility to Gotti. Gotti’s permission to plead
guilty was transmitted to Megale through the defendant. (Tr.
at 651-52).
Cross-examination elicited from Gravano that Gotti
never discussed with him the receipt of monies from
Connecticut and never told him he was receiving money from
Giuseppe Gambino (Tr. at 676-77, 680); that Gravano never
received money from Giuseppe Gambino (Tr. at 679); that
Gotti never told him that the defendant or Giuseppe Gambino
was to bring in a specified weekly sum from Connecticut
gambling and loansharking (Tr. at 680-81, 684-85); that
neither Angelo Ruggiero nor Joe Piney ever told him
(Gravano) that the defendant or Giuseppe Gambino ever
delivered money to John Gotti from Connecticut gambling and
money lending. (Tr. at 682).
Counsel then embarked upon a course of a vigorous,
aggressive and methodical impeachment in which virtually
every crime and every wrongful act committed by the witness
was minutely dissected and laid before the jury over a period
of two days and approximately 150 pages of transcript.
Included in that cross-examination was the fact that at a time
when Gravano had previously testified he met with the
defendant in New York concerning the Megale plea, he was,
40a
in fact, on vacation in Puerto Rico. (Tr. at 838-44). The
redirect and recross-examination of this witness added little of
substantive value to what has been outlined above.
Joseph L. Sheridan, a Special Agent of the FBI,
testified as to the significance of terms used and the identity
of persons referred to during a tape-recorded conversation
between William Lepore, a confidential informant who was
wired, and Aurelio Carmolingo, an associate of the Gambino
Family and a Connecticut loanshark. (Tr. at 897). A person
identified by Agent Sheridan as Tommy DeBrizzi, in charge
of the Connecticut faction of the Gambino Family, was
referred to in that conversation. (Tr. at 904). Also referred
to was a person identified by Agent Sheridan as Tony Megale
who succeeded Tommy DeBrizzi and who was said to be
affiliated with the Gambino Family in New York. (Tr. at
919). Throughout that conversation, references were made to
gambling and shylocking activity of Carmolingo and others
associated with the Gambino Family. There were no
references to either Thomas or Giuseppe Gambino or any of
the recorded conversations and Agent Sheridan testified that
neither Thomas nor Giuseppe Gambino were seen during the
course of surveillances. (Tr. at 941).
Michael Sairius, a retired Connecticut State Police
detective, testified =s an expert on gambling. He explained
the meaning of gambling terms used during the course of
telephone conversations between a bookmaking establishment
and bettors; the mechanics of bookmaking; and the fact that
Tony Megale’s voice was intercepted on some of those
recorded conversations. (Tr. at 1072).
That there was a relationship between Tommy
DeBrizzi, Tony Megale, Frank Piccolo (DeBrizzi’s
predecessor in charge of the Connecticut faction of the
Gambino Family) and others and John Gotti was established
ye a
4la
through the testimony of FBI Special Agents Paul Hayes, Jr.,
and John Schiman. (Tr. at 1073-85).
Special Agent Eugene McCarthy testified to surveilling
Tony Megale on March 22, 1989 from Stamford, Connecticut,
to the Cafe Caps:sccino on Morris Avenue in the Bronx, to
the Dynamic Deiivery Corporation warehouse on West 24th
Street in Manhattan. (Tr. at 1087-89). The Cafe Cappuccino
was the place where Phil Loscalzo "did most of his business
... almost on a daily basis." (Tr. at 1175). The defendant
Thomas Gambino had an interest in the Dynamic Delivery
Corporation. (Tr. at 1176). Cross-examination elicited that
during the course of that surveillance Agent McCarthy did not
see Giuseppe Gambino.
FBI Special Agent James Riordan testified that while
on surveillance on November 14, 1985 he saw Thomas
DeBrizzi meet with Tony Megale and Phil Loscalzo in
Stamford, Connecticut and did not see Thomas Gambino or |
Giuseppe Gambino during the course of that surveillance.
(Tr. at 1093-97).
FBI Special Agent George Mueller testified that while
on surveillance on January 22, 1986, he observed Tommy
DeBrizzi emerge from a cafe with Giuseppe Gambino on
Morris Park Avenue in the Bronx and enter the premises at
1803 Bogart Avenue which was within walking distance from
the cafe. (Tr. at 1100). Approximately two hours later,
DeBrizzi was observed leaving 1803 Bogard Avenue and
approximately twenty minutes after that Thomas Gambino and
Phil Loscalzo were seen leaving the Bogart Avenue address.
(Tr. at 1102-03). Photographs of the persons mentioned were
taken on that occasion and received in evidence as GX
902A-H. On March 22, 1989, approximately three years later,
Agent Mueller testified that he surveilled Tony Megale from
‘ Stamford, Connecticut to the Cafe Cappuccino in the Bronx
where he photographed Tony Megale with Phil Loscalzo and
42a
then followed Tony Megale to a point near Dynamic Delivery
in Manhattan. (Tr. at 1105-07).
FBI Special Agent Milo Dowling, the Case Agent for
this case, testified on behalf of the government. He testified
that on May 3, 1989 he followed Tony Megale from Cos Cob,
Connecticut to West 35th Street in Manhattan and together
with others, executed a search warrant authorizing a search of
Megale and his vehicle. Agent Dowling also described the
articles found on Megale’s person. (Tr. at 1153-55). Agent
Dowling then testified to specific dates and to events
occurring on those dates which were of more than passing
relevance to the government’s theory of the case and to the
entire mosaic of evidence with which these isolated pieces of
testimony fit. For example, Thomas Gambino was observed
at the Ravenite Social Club on April 17, 1990, the day on
which Tony Megale pleaded guilty in the federal court in
Connecticut. (Tr. at 1159). Between April 17 and April 21,
1990 (the date on which John Gotti, Jr. was married), there
were no observations of Thomas Gambino at the Ravenite.
He was next observed there on April 24 and again on April 26
and 27. (Tr. at 1160-61). This was the only week in three
years of video surveillance in which Thomas Gambino was
seen at the Ravenite on three separate days. (Tr. at 1168).
Tony Megale had moved to withdraw his plea on April 25
and his motion was denied on April 30. (Tr. at 1161). The
particular significance of the foregoing is that Gravano had
previously testified that he met with Gotti and Thomas
Gambino regarding the Megale plea at the Ravenite on April
18 which was questionable given the absence of an
observation of Thomas Gambino at the Ravenite between
April 17 and April 21. Agent Dowling became aware of the
discrepancy while compiling a summary chart based upon
videotaped surveillance depicting persons seen at the Ravenite
on given dates. (Tr. at 1163). He never called the
discrepancy to the attention of Gravano and to his knowledge,
Gravano himself first became aware of the discrepancy when
43a
confronted with it upon cross-examination by the defendant’ s
counsel. (Tr. at 1164). It is also particularly significant to
note that the summary chart from which the discrepancy
became apparent was provided to the defense approximately
one week prior to the commencement of the trial. (Tr. at
1163).
Another summary chart reflecting telephone records of
Anthony Megale for the years 1985-1990 was received in
evidence. (Tr. 172-73). Agent Dowling testified that those
records revealed a number of calls to the residence of
Giuseppe Gambino; to and from the Romeo Cafe in the
Bronx where Giuseppe Gambino was frequently found; to the
residence of Phil Loscalzo; to and from the Cafe Cappuccino
in the Bronx where Loscalzo was frequently found; to
Consolidated Carriers on West 35th Street in Manhattan, a
company in which Thomas Gambino has an interest (Tr. at
1173-76, 1181); calls billed to Megale’s home from a grocery
Store three doors removed from the Ravenite Social Club on
days when Megale was also observed at that club (Tr. at
1179-80); calls from Bridgeport, Connecticut to the office of
Paul Victor, Megale’s lawyer in New York City and to
Consolidated Carriers on April 23, 1990, the day on which the
transcript of Megale’s guilty plea was filed (Tr. at 1182-84);
calls from Stamford, Connecticut to Paul Victor and to
Consolidated Carriers on April 30, 1990, the day on which
Megale’s motion to withdraw his plea was filed.
Videotaped surveillances of the Ravenite Club were
received in evidence and played. Agent Dowling identified
the persons captured on those videotapes. (Tr. 1189-1213).
Reference will be made to a selected few of the events
depicted. On October 27, 1988 the defendant and Gravano
leave the Ravenite and engage in conversation for
approximately thirty-five minutes. (Tr. at 1192). On the day
Tony Megale pleaded guilty, Thomas Gambino arrived at the
Ravenite and was seen later on leaving with John Gotti and
44a
others. (Tr. at 1203). On April 24, 1990, the day before
Megale filed his motion to withdraw his plea, Thomas
Gambino and Gravano enter the Ravenite and thereafter
Gambino is seen leaving with John Gotti. (Tr. at 1205). On
April 26, 1990, the day after the motion to withdraw the plea
is filed, Thomas Gambino, Gotti and Gravano are again
captured in a walk-talk. On May 3, 1990, after Megale’s
motion to withdraw his plea was denied, Thomas Gambino
and John Gotti are shown again walking and talking. Shortly
thereafter, Thomas Gambino is again walking and talking with
one Vinnie Aloi, described as a member of the Colombo
Organized Crime Family. Giuseppe Gambino is also at the
Ravenite on that day conversing with Thomas Gambino and
Frank Locascio outside the Ravenite Club. (Tr. at 1210-11).
On May 10, 1990, the videotape depicts Giuseppe Gambino
and Tony Megale entering and exiting the Ravenite Club and
on May 14, Thomas Gambino is shown exiting the Club with
John Gotti. (Tr. at 1212).
Counsel for Thomas Gambino cross-examined Agent
Dowling about the inconsistency concerning the date on which
Gravano showed Thomas Gambino a newspaper article
reporting the guilty plea of Tony Megale and discussing that
plea with him. (Tr. at 1218-24, 1265-66). Cross-examination
also elicited that Tony Megale was at the Ravenite Club on
many occasions when Thomas Gambino was not observed
there. (Tr. 1228-34). Cross-examination also elicited the
many phone calls Tony Megale made.from his cousin’s
restaurant located a few blocks from the Ravenite Club. (Tr.
at 1251-58). Agent Dowling testified, in response to
questions put to him on cross-examination, that he did not
have a recorded conversation in which Tommy Gambino was
discussing Connecticut gambling with Tony Megale or in
which he is heard directing Megale to come to New York.
(Tr. at 1262).
45a
Agent Dowling was cross-examined vigorously, as
well, by counsel for Giuseppe Gambino concerning the date
of the discussion between Gravano and Thomas Gambino
about the newspaper article reporting the guilty plea of Tony
Megale. (Tr. at 1267-77). That cross-examination elicited
that Agent Dowling had no knowledge that Giuseppe
Gambino was present in the Romeo Cafe on the occasions
when Agent Dowling testified telephone calls were made from
that Cafe to, Tony Megale (Tr. at 1283), nor did Agent
Dowling know whether the telephone calls from Tony
Megale’s telephone to Giuseppe Gambino’s telephone were
between Mrs. Megale and Mrs. Gambino. (Tr. at 1282).
Agent Dowling never saw Tony Megale deliver anything to
Giuseppe Gambino nor did he ever see Giuseppe Gambino
deliver anything to Salvatore Gravano. (Tr. at 1285).
This detailed account, assessed objectively, belies the
dogmatic assertion that the case stood or fell upon the
credibility of Salvatore Gravano and that it was his credibility
which alone accounted for the defendant’s conviction and his
co-defendant’s acquittal. Gravano’s direct testimony explicitly
linking the defendant to the Connecticut faction of the
Gambino Family was only as follows:
Q. After DeBrizzi was killed, who took over management
of the Connecticut faction?
A. When Tommy Gambino was involved in running the
Connecticut faction, there was Tony Megale who basically
took direct control of it in answer to Tommy Gambino.
(Tr. at 643-44)
46a
Beyond that, Gravano’s only testimony linking the
defendant to the Connecticut faction is reflected in this snippet
of direct and re-direct testimony:
Q. Did Tony Megale subsequently plead guilty?
A. Yes, he did.
Q. What happened as a result of Tony Megale’s plea?
A. It was in the papers that he admitted being a made
member, that he was controlling the Gambino interest in
Connecticut.
We found out. John Gotti and myself were sitting
there. I believe Frank Locascio came in, who was our acting
consigliere, with the newspaper, put it on the table. John read
it, handed it over to me. I read it and shortly after that,
Tommy Gambino came in and told us that he read the article.
We gave him the article. He said he read it. He said if it was
so, which he didn’t believe it to be so, he would make him
withdraw the plea.
Q. That Thomas Gambino would make Tony Megale
withdraw the plea?
A. Yes.
Q. What happened next?.
A. He tried to withdraw the plea.
(Tr. at 652).
etc in ih 5 ie atl APOE Bs
47a
On redirect examination:
Q. For several years prior to Tony Megale, Tommy
Gambino was also responsible for the operation in
Connecticut, is that fair to say?
A. Yes.
(Tr. at 865-66).
As has been previously outlined, that recounted event was
the subject of much inquiry which established that it did not
occur on the date testified to by Gravano, but, nevertheless
permitted the jury to find that he was mistaken as to the date
but not as to the occurrence. (Tr. at 1290-91). Gravano’s
direct testimony pertaining to Joe Gambino in this connection
is reflected in the transcript as follows:
Q. Do you know whether or not he [Joe Gambino] was
involved in any way in the Connecticut gambling and
loansharking operation?
* * * * * *
A. No.
(Tr. at 648-49) (emphasis added).
A plain reading of the few lines can only be understood as
conveying that Salvatore Gravano did not know whether Joe
Gambino was or was not involved in Connecticut gambling
and loansharking.
Those few lines from a transcript of approximately 1700
pages represent the direct testimony of Gravano linking the
defendant to the Connecticut faction of the Gambino Family.
He disclaimed any knowledge of any of the details of that
48a
linkage as his cross-examination made clear and as is reflected
in the following salient portions:
Q. Did John Gotti ever send a message to you and say to
you, you know, Sammy, Joe Gambino is someone who is
supposed to bring down $1600 a week from Connecticut
gambling and money lending? Never said that in any
message to you, correct?
A. Correct.
Q. And he never said that to you in any message with
respect to Tom Gambino?
A. As far as Connecticut gambling?
Q. That’s what we are talking about, Connecticut gambling,
Connecticut money lending, do you understand that, that’s the
only thing I’m asking you about.
Did John Gotti ever say to you, by way of any
message sent from the prison while you ran the family, that
Tom Gambino was to bring down $1600 a week from
Connecticut gambling and money lending?
A. No.
Q. If I got it, then I say to you, sir, during the period ot
time that you ran this family, the man in charge, am I correct,
when I say neither John Gotti nor any single person ever said
to you that Joe Gambino or Tom, Gambino was responsible,
was assigned the responsibility of bringing money from
Connecticut gambling and Connecticut money lending,
correct, Mr. Gravano?
49a
A. Not to me, no.
Q. So, I am correct, am I not, that no one ever said that to
you, the man in charge, whether it be Gotti or any other of
these--I think it’s been described as 250 made people and a
thousand associates, so 1250 people plus Mr. Gotti, that’s
1251 people, no one ever said that to you?
A. I don’t talk to 1251 people.
Q. Whoever you spoke to?
A. The committee we ran the family with didn’t speak to
me about it.
Q. Nobody said it, right?
A. Not the committee, no.
Q. Let me ask something. Part of the people who
comprised the trio who ran the family during Mr. Gotti’s
absence, was not only yourself, but I have averted [sic] to the
name Joe Piney, correct, he was a member?
A. Yes.
Q. Of this commission, what is it called?
A. The Committee.
Q. The Committee. And Angelo Ruggiero was a member
of the Committee.
Is that right?
A. Yes.
50a
Q. Am I correct when I say that neither Angelo Ruggiero
or Joe Piney ever said to you, Sammy, we are supposed to get
$1600 a week from Connecticut gambling and money lending;
am I correct?
A. No one ever told me that.
Q. And in fact neither Joe Piney nor Angelo Ruggiero ever
said to you that my client, Joe Gambino, or Tom Gambino,
had ever in their lifetime delivered any monies to John Gotti
from Connecticut gambling and Connecticut money lending,
specific crimes charged here?
A. I was never told that, no.
(Tr. at 680-83).
The defendant’s assertion that were it not for those brief
exchanges, he would not have been convicted ignores a mass
of other evidence which would have compelled a denial of a
motion pursuant to Rule 29 of the Federal Rules of Criminal
Procedure even if Gravano had not testified at all. The tape
recorded conversation between John Gotti and George Remini
on January 17, 1986 which the jury heard and about which
Agent Gabriel testified confirmed the defendant’s status as a
Captain in the Gambino Family out of the mouth of John
Gotti as did the tape recorded conversations of January 4,
1990 and January 17, 1990 which also identified members of
the defendant’s crew. The tape recorded conversation
between John Gotti and the defendant on December 19, 1989
about which Agent Gabriel testified confirmed the assumption
by the defendant of responsibility for Tony Megale’s legal
fees. The frequency with which the’defendant was videotaped
at the Ravenite Club and the walk-talks he had with John
Gotti and Salvatore Gravano; the surveillance of Megale in
the area of Dynamic Delivery and Consolidated Carriers, in
each of which the defendant had an interest; phone calls from
a Se Pe
— ee
Sla
Megale to Consolidated Carriers; the phone call from
Consolidated Carriers to the hotel adjacent to the federal
courthouse in Bridgeport, Connecticut on the day on which
Megale’s plea of guilty was filed and a mass of similar
circumstantial evidence from which inculpatory inferences
could have been and obviously were drawn, sufficed to
explain the jury’s verdict of guilt as to the defendant. The
defendant’s assertion that the outcome of this case rested upon
the jury’s acceptance of Gravano’s -estimony about a meeting
he had with the defendant to discuss Tony Megale’s guilty
plea is hardly persuasive for a variety of reasons. First, as has
already been stated, the evidence of the defendant’s guilt
absent Gravano’s testimony was more than sufficient to justify
the jury’s verdict. Second, the jury had ample bases to
conclude that Gravano did in fact meet with the defendant as
he testified but was mistaken as to the date of that meeting.
Third, the vigorous, extensive and impeachment
cross-examination of Gravano, by skilled counsel, placed his
credibility squarely before the jury. Indeed, in the
Defendant’s Memorandum, at page 6, he concedes "[d]espite
vigorous cross-examination, they found him credible..." It is
interesting to note that in his summation, counsel for Giuseppe
Gambino urged upon the jury Gravano’s credibility in
disclaiming any knowledge about his client’s involvement in
Connecticut gambling and loansharking.
He argued to the jury as follows:
Will you please favor me by turning to page 649. It’s true
Mr. Mearns asked this question, but he knew, Mr. Mearns
did, that I would be standing to cross-examine in a
moment. And what did Salvatore Gravano say?
Question: Do you know whether or not he. Joe Gambino,
who is who Mr. Mearns is talking about, was involved and
do you see this modification, do you know whether Joe
52a
Gambino was involved in any way in the Connecticut
gambling and loan-sharking operation?!
* * * * * «
Joe Gambino was not involved in Connecticut gambling or
Connecticut ivai-sharking.’
Now, whatever one says about Salvatore Gravano it is
crystal clear that the role he played was such in this
enterprise if Joe Gambino was involved in Connecticut
money lending and loan-sharking Salvatore Gravano would
know it.
And between the period May, 1986 to April of 1987, he
ran this family. He ran this enterprise. This was an
enterprise concerned not with social events this was an
enterprise concerned with money, making money,
collecting money. Gravano ran the family. He ran the day
to date [sic] operations of this family when John Gotti was
in jail for one full year. He was part of the administration,
the top three people in this family. For a whole year when
Gotti was sitting in the can, while he ran the family with
two other[s], John Armone, Piney, and Angelo Ruggiero
' An examination of page 648 of the official transcript of this
trial reveals that the question put to Mr. Gravano was as stated
above, namely: Q. Do you know whether or not he was involved
in any way in the Connecticut gambling and loansharking
operation? The answer appears on page 649 of that transcript: A.
No. There is no "modification" on page 649.
2 This statement, intended to recite Gravano’s response to Mr.
Mearns’ question, misstates that response as f.n. | makes clear.
53a
one of them was in jail, the other one was preparing for a
case and Gravano says he was the person in charge.
* * 7 * * *
He is in a position obviously to know who has
responsibility for making money, who has responsibility for
delivering money, what the operations of the family are,
and what does he tell you? Joe Gambino to his
knowledge never had any responsibility with respect to
Connecticut gambling and money lending.’
I am going to ask you if you will turn to the next series of
pages. I am not going to make you or request you read it
but from 677 until 684.
In detail, Mr. Gravano was asked, sir, during the five years
that you were part of the administration of this family, did
anybody, John Gotti, Joe Armone, Angelo Ruggiero, any
human being on the face of this earth say, suggest, intimate
that Joe Gambino was connected to Connecticut gambling
and loan-sharking? And his answer was no.
Did Gotti ever say to you that Joe Gambino had one role
to play in Connecticut gambling and !oan-sharking? No
was his answer.
When Mr. Gotti was in jail, messages were received by
you with respect to the collection of monies and the
running of the family, was any message received from Mr.
Gotti, Mr. Armone or Mr. Ruggiero to the effect Joe
Gambino had one solitary role to play in the operation of
Connecticut gambling and Connecticut loan-sharking?
And the answer was no.
> See, supra, as regards the inaccuracy of this statement.
aiid
Does this man know, Gravano, about the affairs of
Connecticut gambling, and Connecticut loan-sharking? Not
only as I say was he a part of the administration for five
years, but he and he alone pleaded guilty to supervising,
managing, directing, and controlling Connecticut gambling
and Connecticut loan-sharking.
Do you understand how important that is?
« « + * . *
He pleaded guilty on December 5, 1991 in this courtroom
to supervising, managing, directing, controlling, financing
Connecticut gambling and Connecticut money lending.
Who better than Salvatore Gravano would know who was
or was not involved in an enterprise, specific criminal act
that he had pleaded guilty to, that he was involved in?
And yet he said, Joe Gambino was not involved.‘
That is a very, very difficult burden for this government to
overcome.
Really, when that happened, it would be like the floor of
an elevator coming out. I mean, think about it. The man
who ran the family and was in charge of Connecticut
gambling and money lending tells you ladies and
gentlemen of the jury to your face, Joe Gambino had no
role to play in it. He was not involyed quote in any way
close quote in Connecticut gambling.
What more do you want?
* * * * * *
* See f.n. 3, supra.
a es Se
55a
Not to burden you by having to read once again Gravano
testimony, Gravano has maintained from day one that Joe
Gambino was not involved quote in any way in
Connecticut gambling and money lending.°
Tr. at 1540-47,
It would be idle to speculate as to the reasons for the
acquittal of his co-defendant. Surely, to ascribe that result
entirely to Gravano’s ignorance as to "whether or not" the
co-defendant was involved, is sheer sophistry. Suffice it to
say that the references to him on intercepted conversations
which were, for the most part, oblique, and the fleeting
glimpses of him captured on videotape and photographs were
de minimis in comparison to those of the defendant.
II
A consideration of the bases for the motion for a new trial
pursuant to Rule 33, Fed.R.Crim.P., and the legal principles
which must inform the determination of that motion will
follow. At the outset it is important to note that the alleged
perjury of Gravano is not claimed to have occurred during this
trial. Rather, the defendant’s assertion is predicated upon
testimony given by Gravano in another criminal case tried in
the Southern District of New York and upon a letter dated
May 12, 1993 written by an Assistant United States Attorney
in yet another criminal case pending in this court. In essence,
the defendant claims that Gravano testified inconsistently
about his own involvement in narcotics, and that the
government was aware of that inconsistency and failed to
disclose it to the defendant, thus depriving him of
impeachment material. The reliance by the defendant upon
cases such as United States v. Wallach, 935 F.2d 445 (2d
> Ibid.
56a
Cir.1991) on remand, 788 F.Supp. 739 (S.D.N.Y.), aff'd, 979
F.2d 912 (2d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct.
2414, 124 L.Ed.2d 637 (1993); United States v. Stofsky, 527
F.2d 237 (2d Cir.1975), cert. denied, 429 U.S. 819, 97 S.Ct.
65, 50 L.Ed.2d 80 (1976) and United States v. Seijo, 514 F.2d
1357 (2d Cir.1975), appeal after remand, 537 F.2d 694 (2d
Cir.1976), cert. denied, 429 U.S. 1043, 97 S.Ct. 745, 50
L.Ed.2d 756 (1977), is misplaced. Those cases addressed the
appropriate remedial response where a principal government
witness commits perjury during the course of the trial. That
is not this case. The defendant here seeks this court’s
remedial response to impeachment material he claims the
government withheld. That response is informed by Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
and its progeny.
An analysis of the iste will then begin with Brady.
Brady testified on his own behalf at trial. He admitted his
participation in the murder for which he was indicted but
claimed that a co-defendant, Boblet, did the actual killing. He
requested the jury to return a verdict against him "without
capital punishment." After Brady was convicted and
sentenced to death, he was made aware of an admission by
Boblet that he, Boblet, did the actual killing. Jd. at 84, 83
S.Ct. at 1195. That admission was withheld from Brady by
the prosecution. Brady’s new trial motion was granted, but
restricted to the question of punishment, guilt not being in
issue. /d. at 84, 83 S.Ct. at 1195. The Court held that the
suppression of evidence which, if made available to the
defendant would tend to exculpate him or reduce the penalty,
violates due process irrespective of the good faith or bad faith
of the prosecution. /d. at 87, 83 S.Ct. at 1196. The
distinction between this case and Brady needs no explication
beyond simply stating that evidence which would exculpate
this defendant was not withheld.
——EEEEEEE————————
57a
The next case of significance was Giglio v. United States,
405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), in which
the government failed to disclose an alleged promise to its key
witness that he would not be prosecuted if he testified for the
government. The key witness was Giglio’s alleged
co-conspirator and the only witness linking Giglio with the
crime. In holding that Giglio was entitled to a new trial, the
Court wrote:
When the "reliability of a given witness may well be
determinative of guilt or innocence," nondisclosure of
evidence affecting credibility falls within [the Brady
rule}.... We do not, however, automatically require a new
trial whenever "a combing of the prosecutors’ files after the
trial has disclosed evidence possibly useful to the defense
but not likely to have changed the verdict...." A finding of
materiality of the evidence is required under Brady .... A
new trial is required if "the false testimony could ... in any
reasonable likelihood have affected the judgment of the
jury....
Id. at 154, 92 S.Ct. at 766 (cites omitted). The Court went
on to note that the government’s case "depended almost
entirely on [the witness’s] testimony; without it there could
have been no indictment and no evidence to carry the case to
the jury." Id. (emphasis added). That is not this case. The
government’s case was not at all dependent entirely on
Gravano’s testimony, as the review of the record described
above plainly reveals. It is also important to recall that this
defendant was initially indicted together with Gravano, Gotti
and Locascio. He was severed from that indictment and the
superseding indictment on which he was tried and convicted
charges him with essentially the same crimes.
In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49
L.Ed.2d 342 (1976), the defendant was convicted of
58a
second-degree murder. The victim died of multiple stab
wounds. At the trial, the defendant argued that she acted in
self defense. The prosecutor failed to disclose the victim’s
prior criminal record which reflected two prior convictions of
assault and carrying a deadly weapon which, in each case, was
a knife. The question presented was whether the failure to
provide that information which would have tended to support
the defendant’s self-defense argument deprived the defendant
of a fair trial under Brady. The Court held that it did not.
There is much that is instructive in Agurs and bears
repetition in some detail. To begin, the Court believed it
critical to reiterate that a prosecutor does not violate a
constitutional duty of disclosure unless that which has not
been disclosed is sufficiently significant to deprive the
defendant of a fair trial. Information which has not been
disclosed does not become "sufficiently significant" or
"material" in a constitutional sense because there is a mere
possibility that the undisclosed information "might have
helped the defense, or might have affected the outcome of the
trial.... Nor do we believe the constitutional obligation [of
disclosure] is measured by the moral culpability, or the
willfulness, of the prosecutor... If the suppression of
evidence results in constitutional error, it is because of the
character of the evidence, not the character of the prosecutor."
Id. at 108-10, 96 S.Ct. at 2395. Continuing, the Court wrote:
... [S]ince we have rejected the. suggestion that the
prosecutor has a constitutional duty routinely to deliver his
entire file to defense counsel, we cannot consistently treat
every nondisclosure as though it were error. It necessarily
follows that the judge should not order a new trial every
time he is unable to characterize a nondisclosure as
harmless under the customary harmless-error standard.
Under that standard when error is present in the record, the
reviewing judge must set aside the verdict and judgment
unless his conviction is sure that the error did not influence
i
‘
f
a
59a
the jury or had but very slight effect.... Unless every
nondisclosure is regarded as automatic error, the
constitutional standard of materiality must impose a higher
burden on the defendant.
The proper standard of materiality must reflect our
overriding concern with the justice of the finding of guilt.
Such a finding is permissible only if supported by
evidence establishing guilt beyond 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 reasonable
doubt.
Id. at 111-13, 96 S.Ct. at 2401-02.
Applying that standard, the Court concluded that after
reviewing the nondisclosure "in the context of the entire
record the trial judge remained convinced of respondent’s
guilt beyond a reasonable doubt, and since we are satisfied
that his firsthand appraisal of the record was thorough and
entirely reasonable, we hold that the prosecutor’s failure to
tender [the victim’s] record to the defense did not deprive
respondent of a fair trial as guaranteed by the Due Process
Clause of the Fifth Amendment." /d. at 114, 96 S.Ct. at
2402.
The defendant places great reliance on United States y.
Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 48]
(1985). As is not infrequently the case, the essence of a
60a
decision cannot be divorced from the factual setting in which
it is crafted. Bagley was indicted on fifteen counts of
violating federal narcotics and firearms statutes. The
government’s only witnesses® were state law enforcement
officers employed as private security guards for a railroad
who assisted the federal Bureau of Alcohol, Tobacco and
Firearms ("BATF") in an undercover investigation of Bagley.
The defendant sought pretrial discovery of any "deals,
promises or inducements” made to those witnesses. /d. at
670-72, 105 S.Ct. at 3377-78. Among the material supplied
in response to that discovery request and pursuant to the
Jencks Act, the government produced a series of affidavits
executed by those witnesses in which they stated they received
no rewards or promises of reward. Following Bagley’s
conviction, he learned that BATF had contracted to purchase
information from the witnesses about crimes committed by
Bagley "and upon the accomplishment of the objective sought
to be obtained by the use of such information to the
satisfaction of [the government] will pay .. a sum
commensurate with services and information rendered." /d.
at 671, 105 S.Ct. at 3378. Each witness was subsequently
paid $300. Bagley then moved to vacate his sentence
pursuant to 28 U.S.C. Sec. 2255 alleging the government’s
failure to disclose the contracts which could have been used
to impeach the witnesses violated his right to due process
under Brady. /d. The Court of Appeals for the Ninth Circuit
held "that the government’s failure to provide requested Brady
information to Bagley so that he could effectively
cross-examine two important government witnesses requires
an automatic reversal." /d. at 674, 105 S.Ct. at 3379 (quoting
Bagley v. Lumpkin, 719 F.2d 1462, 1464 (9th Cir.1983)).
That holding was reversed. Although the evidence was used
by the defense to impeach the government’s witnesses by
° — See the dissenting opinion by Justices Marshall and Brennan
in Bagley, 473 U.S. at 685-709, 105 S.Ct. at 3385-97.
OO
whe ihe
6la
showing bias or interest, rather than evidence which was
exculpatory as in Brady and Agurs, the Court held that the
Brady rule embraced impeachment evidence as well as
exculpatory evidence. Reiterating the holding in Agurs that
"a constitutional error occurs, and the conviction must be
reversed, only if the evidence is material in the sense that its
suppression undermines confidence in the outcome of the
trial," the Court said that "[i]t remains to determine the
standard of materiality applicable to the nondisclosed evidence
at issue in this case." /d. 473 U.S. at 678, 105 S.Ct. at 3381.
That determination was made as follows:
The evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different. A "reasonable probability” is a probability
sufficient to undermine confidence in the outcome.
Id. at 682, 105 S.Ct. at 3383.
It is of more than slight significance to note that unlike
Giglio and Bagley, in which impeachment evidence of the
only government witnesses was not disclosed, Gravano was
one of many witnesses (excluding audio and video evidence)
and his testimony implicating the defendant consisted of less
than a dozen lines in a transcript of approximately 1700
pages. In that crucial respect the cases are plainly
@'stinguishable. Applying the standard of_Bagley, and upon
a review of the entire record, I am driven to conclude that
there is no reasonable probability sufficient to undermine
confidence in the outcome, that had the evidence been
disclosed the result of the proceeding would have been
different.
That conclusion makes it superfluous, perhaps, to
reemphasize the surgical precision with which Gravano’s plea
62a
agreement with the government and his criminal past were
dissected and laid before the jury on cross-examination--a
criminal past which included nineteen murders, labor
racketeering, extortion, shylocking, obstruction of justice and
gambling. The significance of that vigorous attack with a
view towards utterly impeaching him is illustrated in many
cases of which United States v. Gilbert, 668 F.2d 94 (2d
Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2014, 72
L.Ed.2d 469 (1982) and United States v. White, 972 F.2d 16
(2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 669, 121
L.Ed.2d 593 (1992) are peculiarly apt.
In Gilbert, the defendant appealed from a denial of his
motion for a new trial pursuant to Rule 33, Fed.R.Crim.P.,
after information impeaching one Couri, a government
witness, became known. After reciting the oft-stated
principles that such motions are not favored and that the new
evidence must be such as to probably lead to an acquittal, the
court wrote, at page 96:
Couri’s credibility had already been attacked at trial.
Cross-examination had probed his plea agreement with the
Government by which he had been permitted to plead
guilty.... He was also shown to have submitted a false
affidavit to a state court in unrelated civil litigation. The
new evidence of his misdeeds ... was merely "additional
evidence tending further to impeach the credibility of a
witness whose character had already been shown to be
questionable," United States v. Rosner, 516 F.2d 269,
273-74 (2d Cir.1975), cert. denied, 427 U.S. 911, 96 S.Ct.
3198, 49 L.Ed.2d 1203 (1976) (emphasis in original); it
could hardly have transformed the jury’s image of Couri
from paragon to knave.
In White, the defendant appealed from the denial of his
motion pursuant to Rule 33 for a new trial based on the
ee
63a
ground of newly discovered evidence that the government’s
key witness perjured himself. In affirming the denial of his
motion, the court said:
<P =
... [C]onsideration must also be given to whether the newly
discovered evidence is cumulative, that is simply additional
evidence to that which was presented at tria! as to a fact,
Or unique evidence that tends to prove a fact at issue....
The evidence questioning the general credibility of Harry
Smith was clearly cumulative. As recited by the district
court:
Smith was aggressively cross-examined by the
defendant’s lawyer, who relentlessly attacked Smith’s
credibility, called him a liar, and emphasized his lack
of veracity in the past. He was shown to be a drug
abuser, a narcotics profiteer in the $1 million range,
and a convicted felon looking for a way to avoid a
long prison sentence.
Since Mincey’s testimony would have been admissible only
for the purpose of showing that Smith lied about his drug
use, a collateral fact that would simply affect the general
credibility of Smith and was not evidence that he was lying
as 10 a particular fact about the crime, the evidence was
cumulative to other evidence of collateral matters that
focused on his credibility.
972 F.2d at 21 (emphasis added) (cites omitted).
The defendant also relies for support for his motion upon
cases decided by the United States Court of Appeals for the
Second Circuit to which I now turn. Chief among them is
United States v. Wallach, 935 F.2d 445 (2d Cir.1991), on
remand, 788 F.Supp. 739 (S.D.N.Y.), aff'd, 979 F.2d 912 (2d
Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2414, 124
64a
L.Ed.2d 637 (1993). The opening sentence of the opinion in
that case, without more, serves to establish that Wallach is
inapposite. That sentence reads: "[t]his appeal presents
several questions, the dispositive one being whether the
perjured testimony of a key government witness requires a
reversal of the convictions." /d. at 449 (emphasis added).
The painstakingly detailed review of the evidence in this case
which is set out as pages 3-25 of this opinion can leave no
doubt that Gravano was not the key government witness here
nor was the allegedly perjured testimony given here. Wallach
is also distinguishable in that Guariglia, one of the two
witnesses upon whose testimony "the prosecution built its
entire case" and whose "testimony was, to say the least,
critical to the government ... perjured himself during the
course of his testimony at trial." /d. at 455. Indeed,
"Guariglia was the centerpiece of the government’s case." Jd.
at 457. The perjury allegedly committed by Gravano was not
during the course of this trial. Indeed, not a single question
was put to him on this trial regarding the subject about which
he claimed to have perjured himself. The focus of Wallach,
namely, "[wjhether the introduction of perjured testimony
requires a new trial depends on the materiality of the perjury
to the jury’s verdict and the extent to which the prosecution
was aware of the perjury", /d. at 456, is not relevant here.
The testimony of Gravano alleged to be perjured was not
introduced at this trial.
United States v. Seijo, 514 F.2d 135742d Cir.1975), appeal
after remand, 537 F.2d 694 (2d Cir.1976), cert. denied, 429
U.S. 1043, 97 S.Ct. 745, 50 L.Ed.2d 756 (1977) also relied
upon by the defendant, is also plainly distinguishable in that,
"[t]he essence of the Government’s case against both
appellants resides in the testimony of Leonard Torres," id. at
1358, and it was during the course of his testimony at trial,
that he lied. Similarly, in United States v. Stofsky, 527 F.2d
237 (2d Cir.1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50
65a
L.Ed.2d 80 (1976), the government relied principally on the
testimony of one Jack Glasser who committed perjury at trial.
Even if those vital distinctions were not enough to
differentiate those cases from this one, the teachings of Brady,
Giglio, Agurs and_Bagley discussed above would compel the
conclusion heretofore reached. The corroboration of the few
lines of Gravano’s testimony from the mouths of John Gotti
and this defendant as captured on tape recordings of
intercepted conversations and the extensive circumstantial
evidence would also distinguish such cases as Giglio v. United
States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972),
United States v. Seijo, 514 F.2d 1357 (2d Cir.1975), and
United States v. Sperling, 506 F.2d 1323 (2d Cir.1974), cert.
denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975),
"where the witness whose credibility was at issue supplied the
only evidence linking the defendant(s) to the crime." See
United States v. Petrillo, 821 F.2d 85, 90 (2d Cir. 1987).
If 1 were more mindful of Francis Bacon’s admonition that
"an overspeaking judge is no well-tuned cymbal"’ and wise
enough to heed it, I would say no more. Being neither
sufficiently wise nor obedient, I venture to make some
additional observations. The vigorous and insistent assertions
by the defendant of Gravano’s perjury qua perjury in another
case have neither been challenged nor otherwise commented
upon to any extent. In calling attention to portions of the
opinion in United States vy. Bortnovsky, 879 F.2d 30, 33 (2d
Cir.1989), it is not my intention to challenge or pass upon
those assertions in any way. It is interesting to note, however,
that in commenting upon a claim that the testimony of a
government witness was "palpably false" because he failed to
note the substance of that testimony in reports of his
investigation or in earlier testimony, the court wrote:
5
Francis Bacon, Judicature in Essays (J.M. Dent & Sons)
162-63 (1958).
66a
Powell’s earlier silence provides an insufficient basis upon
which to find that the later testimony was false. At most,
Powell’s testimony differed from, but did not contradict,
what he said earlier. However, even if this testimony had
conflicted directly with that given previously, the
difference alone would not’ constitute perjury.
"Presentation of a witness who recants or contradicts his
prior testimony is not to be confused with ... perjury." It
was for the jury to decide whether or not to credit the
witness. United States v. Holladay, 566 F.2d 1018, 1019
(Sth Cir.) (per curiam), cert. denied, 439 U.S. 831, 99
S.Ct. 108, 58 L.Ed.2d 125 (1978). See also United States
v. Hemmer, 729 F.2d 10, 17 (1st Cir.) (inconsistencies
between witness’s statements before grand jury and at trial
do not warrant inference that government knowingly used
false testimony), cert. denied, 467 U.S. 1218, 104 S.Ct.
2666, 81 L.Ed.2d 371 (1984); United States ex rel.
Burnett v. Illinois, 619 F.2d 668, 674 (7th Cir.)
("Contradictory testimony does not constitute perjury.")
(footnote omitted), cert. denied, 449 U.S. 880, 101 S.Ct.
229, 66 L.Ed.2d 104 (1980).
See also United States v. Sanchez, 969 F.2d 1409, 1415 (2d
Cir.1992) (differences in recollection alone do not add up to
perjury but present a credibility question for the jury); United
States v. Petrillo, 821 F.2d 85, 89 (2d Cir. 1987) ("Taken in
context, we regard this testimony as, at worst, equivocal ...
and not so misleading as to require corrective action by the
government.").
In denying that it was insensitive to its constitutional
obligations prescribed by Brady, the government argues that
the defendant does not have a right to search through the
government’s files, Bagley, 473 U.S. at 675, 105 S.Ct. at
3379, and that evidence is not suppressed when the defendant
67a
knew or should have known the essential facts that would
permit critical scrutiny of a witness’s testimony. United
States v. Zackson, 6 F.3d 911 (2d Cir.1993); United States y
Gaggi, 811 F.2d 47, 59 (2d Cir.) (the government is not
required to draw inferences from evidence which defense
counsel is in an equal position to draw), cert. denied, 482
U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701] (1987); United
States v. LeRoy, 687 F.2d 610, 618 (2d Cir.1982), cert.
denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019
(1983).
In this regard, the defendant had access to, and in fact had,
Gravano’s prior testimony in United States vy. Gotti; United
States v. Pape, Docket No. 92-CR-0159, EDNY, Feb.1992;
United States v. Orena, Docket No. 92-CR-0351, EDNY, Apr.
1992. In each of those cases, he was cross-examined about
the involvement of John Gotti and the Gambino Organized
Crime Family in drugs. In each he testified that the Gambino
Family and John Gotti were against drugs. He also testified
that there were, however, crews within the Gambino Family
nevertheless involved in drug trafficking. It was surely known
to the defendant that members of John Gotti’s crew, namely,
Angelo Ruggiero, Gene Gotti, and John Carniglia were
convicted of drug trafficking in this district. (See Exhibit C,
Def’s. Mem.)
In this case, Gravano was cross-examined very skillfully
concerning the period of time during which John Gotti was
incarcerated and he, Gravano, either alone or with two others,
ran the Gambino Family. The thrust of this examination was
to establish that as the de facto head of the Family, Gravano
was aware of all of its activities and having no knowledge of
the involvement of the defendants in the crimes charged, they
therefore hadn’t any. For example:
68a
Q. Am I correct to say that you were the closest person in
this operation in the years 1988, ’89, 1990 to John Gotti?
A. I would say so. I was the underboss, second in
command.
Q. He made you the underboss, isn’t that so?
A. Yes.
Q. Now, sir, there came a point in time when John Gotti
was remanded to a jail, i.e., that is, the period May 1986 to
April 1987, right?
A. Yes.
Q. And then there was left to this family the business of
conducting its business, correct?
A. Yes.
Q. And during that period of time you were the acting street
boss of this family, were you not? A. That’s what I was
called. ”
Q. Is it fair to say that during this period of time you were
the person who was in charge of the family, i.e., May *86 to
April ’87, agreed?
A. Other than John, I guess I was the last word, yes.
69a
Q. But John Gotti was in jail; isn’t that right?
A. Yes.
Q. Is it fair, then, to say, considering the people on the
street, you were the man in charge of the family while Mr.
Gotti was in prison, correct?
A. Yes.
* * * * * *
Q. It is part of this group’s business and function to not only
provide a social club, but also to make money for its members
in the administration; isn’t that a fair statement?
A. You got it.
Q. If I got it, then I say to you, sir, during the period of
time that you ran this family, the man in charge, am I correct,
when I say neither John Gotti nor any single person ever said
to you that Joe Gambino or Tom Gambino was responsible,
was assigned the responsibility of bringing money from
Connecticut gambling and Connecticut money lending,
correct, Mr. Granvano?
A. Not to me, no.
* * * * = am
Q. I am correct, am I not, that in your function as
underboss, that you had frequent discussions with Mr. Gotti
relative to money-making Situations; isn’t that a fair
statement?
A. Social situations.
70a
Q. All right. In other words, when you met with Gotti, you
talked about social situations as well as business, the business
of this Gambino organized crime family, La Cosa Nostra,
correct?
A. Both, yes.
Q. You talked about the various ways that money is
generated and made because after all that’s its function in
part, is it not?
A. Yes, but not necessarily the amounts of money.
* * * * * *
Q. You are a part of the administration, the family, in early
*86, until you go to prison on December 11, 1990, some four
years or more?
A. Yes.
Q. Correct. During that time you cannot say to this jury, as
you look upon them, that John Gotti ever said that Joe
Gambino was bringing in or responsible for money from
Connecticut gambling and loansharking, correct?
A. Yes.
Q. I am correct?
A. Yes, you are correct.
Q. And do I take it that during the four-year period that you
sat at the top of this organization, there were many times that
you talked about money and the amount of money that was
coming in from the various ventures of this family; isn’t that
so?
iii |
7la
A. We talked about money, but not the amount of money.
Q. You talked about money, right. You talked about
people?
A. Yes.
Q. You talked about people who were connected to the
money. Is that right?
A. In some cases, yes.
Tr. at 677-85.
It may also be inferred, given the substantial video
depictions of the association between Gravano and the
defendant, that to apprise the jury of that aspect of Gravano’s
background would result in spillover prejudice to the
defendant which they would have wished to avoid. See, e.g.,
United States v. Provenzano, 615 F.2d 37, 49 (2d Cir.), cert.
denied, 446 U.S. 953, 100 S.Ct. 2921, 64 L.Ed.2d 810 (1980).
The defendant also bases his motion for a new trial upon the
failure of the government to produce the notes of FBI Special
Agent Carmine Russo of an interview on March 10, 1993 of
Salvatore Gravano. Also present at that interview were
Assistant United States Attorneys John Gleeson and Andrew
Weissmann. It is his view that production of those notes was
required by the Jencks Act. The notes are these:
3/10/93
SG/W Gleeson/Weissmann
Pat Conte "capo" big earner w/ Paul C gave Paul C car
ME/BE (poss)--gift, drugs Conte John Gambino
72a
C not bringing money into Family JG asked SG to speak
to Pat C--off the record if he was dealing drugs Not--mafia
war in C would send "Cheech" to Sicily contact SG not
know if contact re-est. arrested--JG & Loc
Photos: old man, checked shirt cousin related to Loc in
PC’s crew made
2. Pat Conte
3. Paul G
4. Cheech "made" Pat’s "crew" before JG boss--went to
Sicily
5. young man--car Conte’s son not made--
They work have jobs
The Jencks Act requires the government to produce any
statement of the witness in its possession which relates to the
subject matter as to which the witness testified.
The Act defines a "statement" as
(1) a written statement made by said witness and signed or
otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other
recording, or a transcription thereof, which is a
substantially verbatim recital of an oral statement made by
said witness and recorded contemporaneously with the
making of such oral statement{.]
* = * + * *
18 U.S.C. Sec. 3500(e).
73a
The initial inquiry is whether the notes of Special Agent
Russo contain a "statement" of the witness within the meaning
of the Jencks Act. The notes in question are not encompassed
by the first clause of the Jencks Act which requires the
statement to be written by the witness and signed or otherwise
adopted or approved by him. The second Clause does not
require that the statement be signed or approved by the
witness. What is required, however, is that it be a
"substantially verbatim" statement by him.
It is clear from the continuous congressional emphasis on
substantially verbatim recital,’ ... that the legislation was
designed to eliminate the danger of distortion and
misrepresentation inherent in a report which merely selects
portions, albeit accurately, from a lengthy oral recital.
Quoting out of context is one of the most frequent and
powerful modes of misquotation. We think it consistent
with this legislative history, and with the generally
restrictive terms of the Statutory provision, to require that
summaries of an oral statement which evidence substantial
selection of material, or which were prepared after the
interview Without the aid of complete notes, and hence on
the memory of the agent, are not to be produced. Neither,
of course, are statements which contain the agent’s
interpretations or impressions.
Palermo v. United States, 360 U.S. 343, 352-53, 79 S.Ct.
1217, 1224-25, 3 L.Ed.2d 1287 (1959) (emphasis added).
Had there been any doubt as to whether production of the
Russo notes was compelled by the Jencks Act, the correct
procedure would have been to submit the notes to the trial
judge for an in camera determination. Palermo, 360 U.S. at
354, 79 S.Ct. at 1225.
The government did not produce the Russo notes, nor were
they submitted for an in camera determination. The teaching
74a
of Palermo and the standard it prescribed did not require the
government to do either. Had the government entertained a
doubt regarding production and presented the notes to this
court for an in camera determination, production would
unquestionably not have been required. The notes clearly do
not reflect the kind of factual narrative contemplated by the
Jencks Act and fall far short of the Palermo standard. See
also Hanks v. United States, 388 F.2d 171 (10th Cir.) (Jencks
Act does not compel the indiscriminating production of
agent’s summaries of interviews regardless of their character
or completeness), cert. denied, 393 U.S. 863, 89 S.Ct. 144, 21
L.Ed.2d 131 (1968); United States v. Merida, 765 F.2d 1205
(Sth Cir.1985) (Jencks Act does not require government to
release to defense copies of witness interview reports prepared
by agents of Drug Enforcement Administration which were
short, concise, summaries of witness’ version of the facts as
recounted to agents, and in which summarization and not
verbatim recital was manifest).
Even if the Russo notes satisfied the "statement"
requirement of the Act, production would not be required for
the reason that the statement does not relate to the subject
matter as to which the witness testified. In United States v.
Pacelli, 491 F.2d 1108 (2d Cir.), the court wrote, at page
1118:
Under the Jencks Act a defendant in a federal criminal trial
is entitled, after a government witness has testified on
direct examination, to receive for purposes of
cross-examination any "statement" of the witness in the
government’s possession "which relates to the subject
matter as to which the witness has testified." ... We have
held that the statement must at least "relate generally to the
events and activities testified to" before the statement must
be produced, United States v. Cardillo, 316 F.2d 606, 615
(2d Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11
75a
L.Ed.2d 55 (1963), and that the defense is not entitled to
Statements which are merely "incidental or collateral."
United States v. Birnbaum, 337 F.2d 490 (2d Cir. 1964).
Cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 49
(1974). The court recognized that the reasoning of Cardillo
might be too restrictive and that a Statement that would
Support impeachment for bias or interest may relate to the
witness’s testimony, it also recognized "that not all statements
that might in some way be helpful in impeaching the witness
are producible." Birnbaum, 337 F.2d at 498.
Assuming that the Russo notes were not encompassed by
the Jencks Act for the reasons given, but were encompassed
by Brady, et al., the previous discussion of the legal
consequences that flow from a failure to produce such
material would nevertheless lead to the same conclusion, that
is, the defendant’s motion for a new trial must be denied.
After oral argument on the motion was heard on August 24,
1993 and at which time the court said there would be no
further submissions (Tr. at 71), the defendant continued to
submit letters to which additional materials were attached in
further pursuit of his Rule 33 motion. The first such letter,
dated October 6, 1993, states that Michael Rosen, counsel for
the defendant, representing a defendant in another case
(United States v. Crea, et al., 93-CR-506 (E.D.N.Y.) (SJ)
was furnished a wiretap application dated May, 1989, seeking
court authorized interceptions of communications at Salvatore
Gravano’s business office on Stillwell Avenue in Brooklyn.
The affidavit of Kings County Assistant District Attorney
Brian Mich in support of that application stated that the
electronic surveillance was part of an investigation being
conducted by state law enforcement officials and "Agents of
the Federal Bureau of Investigation." That application
recounts a conversation on March 17, 1989 captured on tape
76a
in which Gravano discusses how a witness subpoenaed to
appear before a Grand Jury should testify so as to avoid being
prosecuted for perjury or obstruction of justice. The
defendant contends that the prosecution was obligated to turn
over all Brady material uncovered in that investigation. He
relies on this statement in Giglio v. United States, 405 U.S.
150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972): "The
prosecutor’s office is an entity and as such it is the spokesman
for the Government. A promise made by one attorney must
be attributed for these purposes to the Government. See
Restatement (Second) of Agency Sec. 272."
In a letter response dated October 18, 1993, to which an
affidavit of Assistant United States Attorney for the Eastern
District Laura A. Ward was attached, she swore that "neither
the prosecutors in this case nor the other prosecutors in this
Office who have worked on related cases were aware of
A.D.A. Mich’s statement (or the Gravano statement that it
recounts) until we received Mr. Burstein’s letter." Her
affidavit goes on to recite facts pertaining to that wiretap
application and the extent of the knowledge her office had.
Her subsequent affidavit, dated October 25, 1993, provides
even greater detail in that regard.
On October 19, 1993 another letter was received from
Michael Rosen, counsel for the defendant, to which were
attached three affidavits dated May 5, 1989 and June 8, 1989,
respectively: one by Kings County Assistant District Attorney
Brian Mich; one by Detective Matthew O’Brien assigned to
the Kings County District Attorney’s Squad; and one by
Kings County Assistant District Attorney Lynn S. Olinger, all
in support of an Eavesdropping Warrant requested to be issued
by a Justice of the Supreme Court of the State of New York
authorizing the interception of communications at the Stillwell
Avenue premises. Once again, the defendant urges a Brady
violation by the government, citing Giglio, Santobello v. New
77a
York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and
Wedra v. Thomas, 671 F.2d 713 (2d Cir.), cert. denied, 458
U.S. 1109, 102 S.Ct. 3491, 73 L.Ed.2d 1372 (1982).
On October 25, 1993, counsel for the defendant orally
requested an "emergency" meeting with the court. A
telephone conference was held shortly thereafter in which the
government and defense counsel participated. Immediately
prior to that conference, the court was furnished with a copy
of an Affirmation in Opposition to a Motion to Bar Retrial,
submitted by James B. Comey, a Special Assistant United
States Attorney for the Southern District of New York.
Various exhibits referred to in that affirmation were not
attached and therefore not before the court. The Affirmation
was in Opposition to a motion made by the defendants in
United States v. Gambino, et al., (9S) 88-CR-919 (PKL) in
the Southern District of New York. The defendants in that
case base their motion on the claim that the Southern District
withheld information contained in a letter proffered by the
government in the Eastern District in the unrelated case of
United States v. Conte (CR-93-0085) (ILG) pertaining to the
bail status of Conte. The bulk of that affirmation addresses
communications between the offices of the United States
Attorney for the Southern and Eastern Districts of New York;
whether the information exchanged between those offices did
or did not make manifest Gravano’s discussions with Conte
about heroin trafficking and therefore, Gravano’s involvement
with it; whether the Southern District knew or should have
known of that involvement; and whether certain information
was or was not Brady material.
The letters of October 6th and 19th will be addressed first.
Each is predicated upon the assertion that knowledge of one
agent of the Federal Bureau of Investigation working with
Assistant District Attorneys of Kings County on another
investigation four years ago and knowledge of those Assistant
78a
District Attorneys reflected in wiretap applications to a state
judge should be imputed to the Assistant United States
Attorneys in this case. That assertion is not persuasive. The
three cases upon which the defendant relies will be examined
briefly. United States v. Giglio, supra, involved a promise of
leniency made to the key government witness by one Assistant
United States Attorney which was not known to another in the
same office. The Court held that the "promise made by one
attorney must be attributed, for these purposes, to the
Government." 405 U.S. at 154, 92 S.Ct. at 766 (emphasis
added.)* Santobello involved a plea agreement made by one
* The Court cited in support of that holding The Restatement
(Second) of Agency Sec. 272. That Section provides as follows:
Sec. 272. GENERAL RULE
In accordance with and subject to the rules stated in this Topic,
the liability of a principal is affected by the knowledge of an
agent concerning a matter as to which he acts within his power
to bind the principal or upon which it is his duty to give the
principal information.
The comments to this section can leave no doubt that the
applicability of the general rule has significance for the law of
contracts, torts and property. Insofar as the promise made by
the Assistant United States Attorney was relied upon by the key
government witness in Giglio, a contract may be said to have
been formed and this Rule was fairly applied. In the context of
the facts before the court on this defendant’s submission, the
applicability of the Rule is extremely doubtful, to say the least,
assuming that the Rule was ever contemplated to be applicable
to criminal investigations which, I venture to say is also
extremely doubtful.
The observation of the Court in Santobello confirms the contract
analogy, viz.: "... [w]hen a plea rests in any significant degree
on a promise or agreement of the prosecutor, so that it can be
79a
prosecutor which was specifically enforceable against another.
In that context, the Court wrote "[t]he staff lawyers in a
prosecutor’s office have the burden of "letting the left hand
know what the right hand is doing’ or has done." Santobello,
404 U.S. at 262, 92 S.Ct. at 499 (emphasis added).? Wedra
is inapposite.
To apply Giglio to impute the knowledge of an FBI agent
and state district attorney to the federal prosecutors in an
unrelated case four years later "would appear to stretch the
doctrine too far." See United States v. Rosner, 516 F.2d 269,
278-79 n. 4 (2d Cir.1975), cert. denied, 427 U.S. 911, 96
S.Ct. 3198, 49 L.Ed.2d 1203 (1976). That imputation
presupposes a monolithic view of government which, if
adopted, would condemn the prosecution of criminal Cases to
a state of paralysis. It is undoubtedly accurate to say that
investigations of the members and associates of the Gambino
Organized Crime Family by many federal and state law
enforcement agencies have produced countless hours of
surveillance logs and countless hours of video tapes and audio
cassettes. Indeed, in the letter of October 6, 1993 previously
referred to, defense counsel states his "understanding that the
Stillwell Avenue surveillance alone consists of 858 Cassettes."
In the letter of October 19, 1993 defense counsel writes,
"[t]here are still at least 800 tapes to be reviewed to see
whether additional Brady material was captured and withheld."
Those number estimates pertain to the surveillance of just one
location.
said to be part of the inducement or consideration, such promise
must be fulfilled." Santobello, 404 U.S. at 262, 92 S.Ct. at 499.
* ‘See n. 8, supra.
80a
To require the prosecutor to listen to every audio cassette,
view every video tape and examine every surveillance log of
the Gambino Organized Crime Family whenever and by
whoever conducted to uncover the possible existence of Brady
material is neither good logic nor good law and could not
have been intended by Giglio. The untenability of that
contention was most forcefully and convincingly conveyed in
United States v. Quinn, as follows:
... [A]ppe!lants take the completely untenable position that
"knowledge of any part of the government is equivalent to
knowledge on the part of this prosecutor" and that "he [the
New York prosecutor] must be deemed to have had
constructive knowledge of this evidence." .. The
Department of Justice alone has thousands of employees in
the fifty States of the Union. Add to these many more
thousands of employees of "any part of the government."
Appellants’ argument can be disposed of on a "reductio ad
absurdum” basis.
445 F.2d 940, 944 (2d Cir.), cert. denied, 404 U.S. 850, 92
S.Ct. 87, 30 L.Ed.2d 90 (1971). See also United States v.
Stassi, 544 F.2d 579, 582 (2d Cir.1976), cert. denied, 430
U.S. 907, 97 S.Ct. 1176, 51 L.Ed.2d 582 (1977) and Unved
States v. Morell, 524 F.2d 550, 555 (2d Cir.1975).
Gravano was vigorously cross-examined about his role in
obstructing justice. He admitted bribing jurors with a view
towards frustrating the successful prosecution of Gambino
Organized Crime Family Members, John Gotti and Eddie
Lino. Gravano’s past intercepted conversation pertaining to
testimony before a grand jury ,was, by comparison,
insignificantly cumulative.
The affirmation of James B. Comey is, in the final
analysis, irrelevant to the determination of this motion. It
8la
adds nothing to the factual and legal calculus upon which the
determination of this motion is based and which has been
discussed at some length. Given the emphasis placed upon
the conduct of the prosecutors and the recriminations between
the Southern and Eastern District Offices of the United States
Attorney which one may intuit from the Comey affirmation,
it is worth repeating that the constitutional obligation of
disclosure is not hinged upon the moral culpability of the
prosecutor. If non-disclosure results in constitutional error "it
is because of the character of the evidence, not the character
of the prosecutor." United States v. Agurs, 427 U.S. 97, 110,
96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). By adverting to
that observation, I do not suggest that the prosecutors in this
case were morally culpable and for the reasons previously
discussed, I reiterate my conclusion that the character of the
evidence did not result in constitutional error by its
non-disclosure.
Finally, the defendant’s motion for a new trial based upon
his assertion that the verdict was against the weight of the
evidence is totally devoid of merit. The review of the
evidence, set out at length in the first portion of this opinion,
would permit no other conclusion.
For the foregoing reasons, the motions are denied.
SO ORDERED.
82a
Appendix C
District Court Decision
Pre-Trial Motions
818 F.Supp. 541 (E.D.N.Y. 1993)
UNITED STATES of America, Plaintiff,
v.
Thomas GAMBINO, Philip Loscalzo and Guiseppe
Gambino, Defendants.
No. CR-90-1051 (S-3).
United States District Court,
E.D. New York.
April 15, 1993.
After indictment respecting conducting or participating in
conduct of affairs of enterprise through pattern of racketeering
activity or collection of unlawful debt and conspiracy to do
so, defendants moved to dismiss superseding indictment
against defendant, to dismiss count of indictment for improper
venue, to strike prejudicial surplusage from indictment, to
exclude certain evidence, and to obtain disclosure. The
District Court, Glasser, J., held that: (1) four-month delay to
prepare superseding indictment joining~ defendant with two
codefendants was excludable under Speedy Trial Act; (2)
government would not be compelled to disclose its history of
dealing with cooperating witnesses who did not tell truth; and
(3) government would not be directed to make available to
defendant all its surveillance reports of defendant as
exculpatory evidence.
So ordered.
83a
Laura Ward, Geoffrey S. Mearns, Asst. U.S. Attys., for
U.S.
Michael Rosen, New York City, for Thomas Gambino.
Judd Burstein, New York City, for Thomas Gambino.
Murray Richman, Bronx, N.Y., for Philip Loscalzo.
Jay Goldberg, New York City, for Guiseppe Gambino.
MEMORANDUM AND ORDER
GLASSER, District Judge:
The defendants, Thomas Gambino, Guiseppe Gambino,
and Philip Loscalzo have filed motions which seek to (a)
dismiss the superseding indictment against Thomas Gambino;
(b) dismiss Count Three of that indictment for improper
venue; (Cc) strike prejudicial surplusage from the indictment;
(d) exclude certain evidence; and (e) obtain disclosure.
I
Dismissal of Superseding Indictment Against Thomas
Gambino
Thomas Gambino was initially charged in an
indictment that was filed on December 12, 1990 with two
counts alleging violations of 18 U.S.C. Secs. 1962(c) (RICO)
and 1962(d) (RICO conspiracy). The racketeering acts
incident to those counts with which he was charged were
alleged violations of 18 U.S.C. Secs. 2 and 1955; Sec. 892
and Sec. 894. Pretrial bail and detention hearings followed.
On December 12, 1990 an order of excludable delay was
entered pursuant to 18 U.S.C. Sec. 3161(h)(8)(B)(ii) based
upon a determination that this was a complex case.
84a
A superseding indictment was filed on July 18, 1991.
The charges against Thomas Gambino were not altered. On
that day several other matters were considered. Mr. Rosen,
counsel to Thomas Gambino, advised the court that he would
not move for a severance. A trial date of September 23, 1991
was reaffirmed. The motion made by Mr. Rosen on behalf of
Gambino for an evidentiary hearing pursuant to Kastigar v.
United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212
(1972), was granted, the hearing, if still warranted, to be held
at the conclusion of the trial. That motion is, technically, still
pending. The disqualification of counsel for then
codefendants Gotti and Gravano, and the need that this
disqualification created for them to obtain new counsel,
caused the September 23, 1991 trial date to be deferred. At
a status conference held on August 28, 1991, Mr. Rosen
advised the court that his client was required to appear for
trial in the state court in January, 1992.
On September 30, 1991 the government, by motion
returnable October 3, 1991, sought an order severing the trial
of Thomas Gambino. That motion was not opposed and was
granted in an order dated October 23, 1991. The trial of
codefendants Gotti, Gravano, and Locascio was fixed for
January 21, 1992. Gravano pleaded guilty in the interim.
The remaining defendants, Gotti and Locascio, were found
guilty on all counts on April 2, 1992 and sentenced on June
23, 1992. Post-trial motions were made following the verdict
and following sentencing, the last being-made as recently as
February 3, 1993.
On August 4, 1992 a superseding indictment in which
Thomas Gambino was joined with two other defendants was
unsealed and filed. This indictment and the indictment
originally filed on December 12, 1990, as to Thomas
Gambino, are the same except that Gambino was joined with
two new defendants and was charged with violating 18 U.S.C.
Secs. 1952 and 2 as a predicate racketeering act in Count One
85a
and as a separate offense in Count Three. Thomas Gambino
appeared before this court for arraignment on August 14,
1992. A status conference was scheduled for August 21, 1992
at which counsel for all defendants appeared. Mr. Goldberg,
counsel for codefendant Guiseppe Gambino, and Mr.
Richman, counsel for codefendant Loscalzo, apprised the court
of their respective prior engagements and of their need to
review approximately 1,000 cassettes; they requested a trial
date after the second week of January, 1993. Mr. Rosen
joined in their application. (Tr. Aug. 21, 1992, at 4). The
government announced its readiness to proceed within seventy
days but agreed to abide by the court’s direction. When the
end of January or the first week of February was suggested as
a viable trial date, Mr. Rosen stated as follows:
MR. ROSEN: I don’t want to cry the blues, but |
think I have to at least let you know of a potential
problem. I don’t really see it as a major problem.
Perhaps your Honor and Judge Leisure in the Southern
District can work it out.
There is a trial scheduled. I don’t know if it’s a firm
date or tentative date because a Superseder is about to
come down next week or the week after, a case in
front of Judge Leisure also called United States of
America versus Gambino. It’s a similar name from
what we have heard. There is a superseder coming
down and perhaps the Government can work it out,
who goes where first.
February 1, 1993 was then fixed as the trial date in
this case, and an order of excludable delay based upon
3161(h)(8)(B)(ii), in which Mr. Rosen concurred (Tr. Aug. 21,
1992, at 6), was issued to cover the period August 21, 1992
to February 1, 1993.
86a
On that same day, August 21, 1992, the government
filed a motion to modify the terms of Thomas Gambino’s bail.
A hearing was held on that motion on September 14, 1992,
and it was denied from the bench.
On September 24, 1992 Mr. Rosen filed a motion for
a severance on behalf of Thomas Gambino which was
returnable on October 2, 1992. That motion was predicated
entirely on Mr. Rosen’s conflicting trial schedule. On the
return date Mr. Rosen stated that "it would be very difficult,
indeed, to go to trial in November, but I’m committed to do
it, if the court sees its way clear of giving us this opportunity
to fight this case the way I’m prepared to fight it and the time
I put into it, ... We posed the alternative, either the severance
and earlier trial or to put the case over beyond the Judge
Leisure case." (Tr. Oct. 2, 1992, at 2-3). The government
opposed the motion to sever and, for reasons indicated upon
the record (Tr. Oct. 2, 1992, at 6, 10), the motion was denied.
During the course of that proceeding, Mr. Burstein, co-counsel
for Thomas Gambino, after alluding to the time gap between
the verdict in the Gotti case (April 2, 1992) and the
superseding indictment in this case (August 4, 1992) and
without reference to the Speedy Trial Act, observed that "if
this case went in May instead of February it would not be the
end of the world." (Tr. Oct. 2, 1992, at 8).
The reference to the time gap which is the crux of this
motion prompted the court to inquire of.the government why
the case was not brought on sooner. The government
responded as follows:
MS. WARD: I can represent to the court between
April and August we did investigations to make a
determination as to whether or not we should be
adding these two additional defendants. Based on
testimony that had occurred during the Gotti trial and
based on discussions with Mr. Gravano, we made a
87a
determination. We had to make the presentations to
the Grand Jury, and we Superseded as soon as we
possibly could putting in the surveillances, and we
thought it was in the best interest of the case and
judicial economy, since we intend to try the two
individuals on these charges, to combine them with
Mr. Gambino because it would have been an identical
trial.
(Tr. Oct. 2, 1992, at 8-9).
At the next status conference, October 9, 1992, the
following statement was made by Mr. Rosen:
MR. ROSEN: Your Honor, because of a little
logistical problem over the holidays, I didn’t go to see
my client over in the Southern District until yesterday
and I come to advise the Court that my client in that
case has asked if it is humanly possible and doesn’t
cause anybody great pain and hardship, that he would
prefer me to continue to represent him.
He paid me in the past. We’ve been together a couple
of years on that case. It’s a long and involved case
and I suggest most respectfully, I know your Honor
had declined to sever the case and move it forward,
but most respectfully, your Honor, this is a two-week
trial and I would ask your Honor to really consider
adjourning it then so that I can complete the case
before Judge Leisure.
Judge Glasser, I don’t mean to be critical but I know
your Honor had said you had a lot of cases to try.
Our case doesn’t involve any speedy trial problems.
All the defendants are out.
Again, not to be critical but the Government didn’t
move with the greatest amount of haste and anxiety to
bring Mr. Gambino here to trial. They had their own
agenda. They wanted to do some more investigation.
They wanted to make additional presentations. That
is their right, but in light of what you said last week
about your sensitivity to people trying to have a
lawyer of their choice, and since I really can’t see, and
mean this sincerely, any phenomenal prejudice
certainly to the Court and to the government in putting
it over for a couple of months, I would ask that you
really consider most respectfully putting this off until
I finish the case in front of Judge Leisure.
I don’t see how anybody gets hurt, with all due
respect.
(Tr. Oct. 9, 1992, at 2-3) (Emphasis added). During the
course of the proceeding on February 19, 1993, the court was
informed, without contradiction, that defense counsel indicated
to the government that he did not want the matter calendared
during the summer months of 1992. (Tr. Feb. 19, 1993, at
24).
On December 7, 1992, the defendant Thomas Gambino
filed this motion seeking, among other things, an order
"[djismissing the superseding indictment against Thomas
Gambino because the government failed to comply with the
Speedy Trial Act, and instead trying Thomas Gambino alone
on the original indictment." (Emphasis added). A hearing
on this motion was delayed until February 19, 1993 due to the
unavoidable unavailability of counsel, and the trial of this case
was fixed for March 22, 1993. The defendant Thomas
Gambino makes no Speedy Trial Act claim for the period
August 4, 1992 to March 22, 1993. It is the period between
March and August of 1992 during which he claims the Speedy
Trial clock ran down.
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Discussion
The detailed chronology of events has been furnished
in the belief that it, more eloquently, perhaps, than any other
narrative statement could, places in sharp focus the issue
raised by this motion as the court firmly believes it to be,
namely: should defense counsel be permitted simultaneously
to use the Act as a sword as well as a shield and to sandbag
the court and the government in doing so? Or, to put it
slightly differently, is the defendant correct when he says "the
truth is that the Speedy Trial Act is obviously designed to
permit defendants to take advantage of government errors"?
(Reply Memorandum of Law in Support of Defendants’
Pretrial Motions, at 3).
In the defendant’s view, "the government can avoid a
finding that it violated the Speedy Trial Act only if it can
establish that the time between March and August of 1992
was excludable pursuant to Sec. 3161(h)." The only
subdivisions of that section which he contends are arguably
relevant are Secs. 3161(h)(1) and 3161(h)(8)(A); he argues,
however, that neither of these sections are applicable. The
court concurs in the view that neither of those subdivisions is
applicable but not in the view that those are the only
subdivisions that are relevant.
The government urges the adoption of the view that
having made a Kastigar motion, the time during which that
motion continues to remain under advisement is excludable.
The government, having successfully contended when the
motion was made that its determination should await the
conclusion of the trial, is surely disingenuous in now
contending that the Act, designed to accelerate criminal trials,
is suspended until the trial has ended. The government also
urges the court to give continued efficacy to a finding made
on the original indictment, in which all parties concurred, that
delay in commencing the trial was excludable because the case
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was so complex, pursuant to Sec. 3161(h)(8)(B){ii). The
codefendants in that original indictment, John Gotti and Frank
Locascio, have already been tried, convicted, and sentenced.
The government urges, however, that since the defendant
(Thomas Gambino) was severed from that indictment and is
yet to be tried, that finding of complexity is still extant.
Finally, the government asserts, that having repeatedly
requested a further continuance, the defendant has either
waived a Speedy Trial claim or is abusing the process of the
Speedy Trial Act to obtain a severance, clearly a purpose for
which it was not intended. In his Memorandum of Law, the
defendant states: "The only fair way to cure the prejudice
from this delay is to sever Mr. Gambino from his
codefendants or to permit him to go to trial on the original
indictment in this case." (Memorandum of Law in Support of
Defendants’ Pretrial Motions, at 2).
The defendant places principal reliance upon United
States v. LoFranco, 818 F.2d 276 (2d Cir.1987). There
LoFranco appealed from a judgment of conviction after he
pleaded guilty to three counts of a six count indictment. His
claim, among others, was a Speedy Trial Act violation. The
ratio decidendi of the case as stated in a per curiam opinion
is simply that " violations of the defendant’s rights to a
speedy trial’ are non-jurisdictional and therefore waived by a
guilty plea that does not include a court-approved reservation
of the issue." /d. at 277. It is the dictum which follows
that the defendant trumpets as pronouncing the doctrine he
assiduously advances in support of his position, namely, "that
the *complex case’ exclusion remained viable only until the
commencement of the first trial of this indictment”:
In holding that LoFranco’s guilty plea waived any
Speedy Trial Act objections he might have had, we do
not imply that there was a violation of the act. We do
note, however, that Chief Judge Munson’s order of
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September 26, 1985 excluding from computation under
the act all time from that date until trial pursuant to
Sec. 3161(h)(8), could be interpreted as allowing
virtually unlimited delays. We assume that this order
was made in anticipation of a particular trial date, thus
limiting what might otherwise be a boundless
exclusion of time that could undermine the purposes of
the Speedy Trial Act. We remind district judges that
the length of an exclusion under Sec. 3161(h)(8) for a
"complex" case, 18 U.S.C. Sec. 3161(h)(8)(B)(ii),
should reasonably be related to the actual needs of the
case, and should not be used either as a calendar
control device or as a means of circumventing the
requirements of the Speedy Trial Act.
The basis for the defendant’s reading of that dictum,
namely, that an exclusion for complexity has a life expectancy
limited by the commencement of the trial, is not readily
apparent. On the contrary, it can fairly be argued that the
exclusion as applied to this defendant was, as explained by
Assistant U.S. Attorney Ward, supra, reasonably related to the
actual needs of the case and was not used as a calendar
control device. I address the government’s assertion of waiver
and the defendant’s assertion that the only relevant sections of
the Speedy Trial
A. Waiver
Those circuits which have squarely confronted the
issue of waiver have concluded that 18 U.S.C. Secs.
3161(c)(1) and 3162(a)(2) foreclose a defendant’s right to
waive a speedy trial. United States v. Willis, 958 F.2d 60, 63
(Sth Cir.1992); United States v. Kucik, 909 F.2d 206, 210-11
(7th Cir.1990), cert. denied, 498 U.S. 1070, 111 S.Ct. 791,
112 L.Ed.2d 853 (1991); United States v. Berberian, 851
F.2d 236, 239 (9th Cir.1988), cert. denied, 489 U.S. 1096,
109 S.Ct. 1567, 103 L.Ed.2d 934 (1989); United States v.
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Ray, 768 F.2d 991, 998 n. 11 (8th Cir.1985); United States
v. Pringle, 751 F.2d 419, 433-34 (lst Cir.1984); United
States v. Carrasquillo, 667 F.2d 382, 388-90 (3d Cir.1982).
The view that the Speedy Trial Act cannot be waived is
puzzling given a recognition in the Act that it may be.
Section 3162(a)(2) provides, in part, that "[flailure of the
defendant to move for dismissal prior to trial or entry of a
plea of guilty or nolo contendere shall constitute a waiver of
the right to dismissal under this section." Research has not
revealed any case in which the Second Circuit has explicitly
held that the Speedy Trial Act cannot be waived, although it
has uncovered one case which implied that it can. See United
States v. Didier, 542 F.2d 1182, 1187 (2d Cir.1976) ("Having
been put on notice ... that responsibility for speedy trial
enforcement rests primarily on the district courts and on the
government, not on the defendant, the government should
have attempted to obtain either a retrial within 90 day ... or an
explicit waiver of that 90 day period from appellant Didier")
(emphasis added). In United States v. Patten, 826 F.2d 198
(2d Cir.1987), a waiver by virtue of Sec. 3162(a)(8) was
recognized.
An examination of two of the cases decided by the
circuits which preclude a waiver is, however, revealing. In
United States v. Willis, 958 F.2d 60 (Sth Cir.1992), the district
court conditioned granting the defendant’s request for a
continuance upon his surrendering his right to a speedy trial.
He subsequently moved to set aside his conviction on the
ground that the Speedy Trial Act was violated. The court
granted his motion and reversed the conviction, but made the
following observations before arriving at its decision:
Dismissing an indictment is a’ sharp remedy, and we
have been reluctant to impose it where the defendant
has induced the district court to misapply the Act and
then relies upon that error to seek dismissal. United
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States v. Eakes, 783 F.2d 499, 503 (Sth Cir.1986)....
Where the defendant has successfully convinced the
trial court that a continuance is appropriate under a
provision of the Act and then later seeks to argue that
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