Petition for Writ of Certiorari — Maggiore v. United States

Based on the district court’s disbelief of Maggiore, and

at the urging of the judge, the prosecutors investigated

whether any new facts or circumstances undermined

the jury’s verdict and the veracity of the cooperating

witnesses (Second Circuit Appendix at A. 215).

Afler reviewing all the information resulting from the

six-month investigation, the government confirmed

that Maggiore “testified truthfully that Angel D’ Angelo

shot Thomas Palazzotto” (Second Circuit Appendix at

A. 215-16). Therefore, the government reaffirmed its

confidence in Maggiore’s testimony about D’Angelo

(Second Circuit Appendix at A. 216).

Nevertheless, even though the government was “confident

about Maggiore’s identification of D’Angelo as the

shooter,” which was the “core” of his testimony (Second

Circuit Appendix at A. 229-30, 286), as a result of

Judge Gleeson’s interference in the plea process‘

the government withdrew its § 5K1.1 motion, based on a

few allegedly false statements by Maggiore that the

government concedes were “collateral” and “not material”

)

As part of the thorough investigation, Maggiore was subjected

to a polygraph examination “conducted by experienced and certified

FBI examiners” (Second Circuit Appendix at A. 215, 226-27).

* As an example of the kind of pressure exerted by Judge Gleeson, before

the government withdrew Maggiore’s § SK1.! letter the court directed the

prosecutors to submit a letter explaining why he should not find

that they Aénowingly presented § perjured testimony during

the D'Angelo trial! (Second Circuit Appendix at A. 231). The judge also

declared to the government's attorneys, “1 am shaking up here. | feel sick

with dies case. This case reeks” (Second Circuit Appendix at A. 261). The

coun added. “You demonstrated you can defend this, but you don't

have to. | cannot for the life of me figure out why you are.” /d

Later, Judge Gleeson conceded that “[(t}hese defendants had quite an

ally in the prosecutor” out then “I informed the government that | thought

its witnesses were liars” (App. 21-22). He added, “I've been hard on the

government” (App. 22)

(Second Circuit Government Appendix at GA. 26) (emphasis

supplied).°

Thus, despite the fact that Maggiore’s cooperation

exceeded the government’s expectations, jeopardized

his personal safety, and resulted in nine convictions,’

in the end, the government agreed with Judge Gleeson

that Edward Maggiore should be sentenced to a term

of life imprisonment (Second Circuit Appendix at

A. 242, 288).

Without holding a hearing, or ever providing the

defense with a chance to contest the government’s

claims, and refusing to recuse himself, the district court

then denied Petitioner's motion for specific

performance of the cooperation agreement (App. 18).° Judge

Gleeson then imposed a life sentence without parole on

Edward Maggiore, who was only 29 years old at the time of

* Even though Maggiore admitted that he popped open the hood of

his car so that the gun D’Angelo used to shoot Palazzotto could

be retrieved, the govermment suggested that Maggiore falsely

testified that he did not remember whether it was he or Robert

Alvarado who retrieved the gun that was eventually handed to

D’Angelo. The government also_ indicated that Maggiore could not

recall a telephone conversation that he may have had with Alvarado’s

brother before the shooting in which Albert Alvarado said “give ‘em

hell” (A. 87, 216). Significantly, the government recognized that

the phrase “give him hell” is “not synonymous with shoc. ng”

(Second Circuit Special Appendix at SPA. 36-37).

* judge Gleeson reasoned that he “would not depart on the ground

of substantial assistance even if a motion were made” and, regardless,

the government “acted in good faith” in refusing to comply with

the agreement (App. 18).

the shooting.’ The Second Circuit affirmed and denied

rehearing (App. 1-6, 27-28).

——

’ If Maggiore had been sentenced pursuant to the cooperation

agreement, and received the downward departure for substantial

cooperation, his sentence would have been in the range of 97 to

121 months (a period of 8 to 10 years).

REASONS FOR GRANTING CERTIORARI

THE SECOND CIRCUIT’S DECISION,

WHICH ENABLES THE GOVERNMENT

TO BREACH ITS COOPERATION

AGREEMENT WITH A WITNESS WHO HAS

PROVIDED SUBSTANTIAL ASSISTANCE

AND PUT HIS LIFE ON THE LINE

BASED SOLELY UPON ITS BELIEF THAT

THE WITNESS MADE A FEW IMMATERIAL

MISREPRESENTATIONS DURING HIS

LENGTHY PERIOD OF COOPERATION, WILL

SERIOUSLY IMPAIR THE WILLINGNESS

OF COOPERATING WITNESSES TO WORK

WITH THE GOVERNMENT AND GIVE

TESTIMONY AT TRIAL,

“Informants are the life blood of any law enforcement

agency” and the “use of informants remains one of law

enforcement’s oldest and most essential investigative tools.”

Nevertheless, the Second Circuit’s most harrowing

decision in Maggiore — affirming the life sentence

imposed on a cooperating witness based solely upon

a tentative determination that the witness committed

perjury as to immaterial matters — is bound to carry

grave implications that extend far beyond the bounds

of this highly publicized case.” This is, of course,

because defendants. who may wish to cooperate with a

® Maria Limbert, Problems Associated with Prosecutorial Control

Over Filing Substantial Assistance Motions and a Proposal for a

Substantial Assistance Presentence Hearing, 27 J. Legis. 251 (2001)

(emphasis supplied).

* See, e.g., “Men Who Cooperated in Gang Murder Case Sentenced

to Prison,” Associated Press (April 9, 2004).

10

government investigation, in exchange for a more

lenient sentence, will be discouraged from doing so by

the life sentence imposed upon Edward Maggiore.

Simply stated, the government entered into a contractual

arrangement with Mr. Maggiore. He complied with

that agreement by providing information that directly led

to a number of important convictions for the U.S.

Attorney’s Office. He also put his life on the line.

The government concedes that Maggiore’s cooperation

“exceeded expectations” (Second Circuit Appendix at

A. 204) (emphasis supplied). And, to date, the government

fully credits his testimony as “truthful” regarding the

principal issue of his cooperation: whether Angel D’ Angelo

shot Thomas Palazzotto.

Despite this remarkable record of “substantial

cooperation,” which resulted in guilty pleas of nine

violent gang members, the government broke its promise

to advocate for a lenient sentence. Thus, after draining

him dry as a source, they left Edward Maggiore to

endure a life sentence based solely upon allegations that

he failed to accurately recall certain “collateral” matters

during his cooperation, which spanned more than two

years. Condemned to spend the rest of his life in prison,

and in mortal fear of the many violent defendants who

were convicted through his cooperation, he has received

absolutely nothing in exchange for his _ significant

assisiance. These stark uncontested facts suggest the

awful solemnity of the occasion that brings us to this

Court bearing a recurring issue of constitutional scale

and extreme urgency.

-~

1]

This is a matter of universal concern since this

decision is destined to seriously impair the willingness

of cooperating witnesses to work with the government

and give testimony at trial, which is so critical for the

administration of justice. Defendants will not enter into

cooperation agreements, and subject themselves to the

terrible hardships and risks associated with such an

undertaking if, after fulfilling their part of the bargain

and providing substantial assistance, they are sentenced

to prison for the rest of their lives, based on an

immaterial breach of the agreement."°

This Court should resolve this significant debate in

light of the dire consequences to cooperating witnesses

across the country. Otherwise, this volatile issue, relating

to the breach of a cooperation agreement for immaterial

or unproven falsities, will be a source of continuing

controversy across the full expanse of this nation. Once

it becomes evident that the government can renege on

a cooperating agreement based solely on an immaterial

breach, the whole system of using cooperating witnesses

will be jeopardized. 5

‘© As recently confirmed by the Court of Appeals for the Federal

Circuit, a party breaches a contract when it is in “material

non-compliance with the terms of the contract.” Gilbert v. Department

of Justice, 334 F.3d 1065, 1071 (Fed. Cir. 2003). A breach is

material when it “relates to a matter of vital importance, or goes

to the essence of the contract.” /d.

12

CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE CONFLICT AMONG THE

CIRCUITS RELATING TO WHETHER AN

EVIDENTIARY HEARING IS WARRANTED

TO INVESTIGATE THE GOVERNMENT'S

REVERSAL OF A DECISION TO MAKE A

§ SK1.1 MOTION.

The Second Circuit’s decision, affirming the district

court’s refusal to conduct a hearing that would have

enabled defense counsel to challenge the alleged

breach, is also in direct conflict with established

authority from the Court of Appeals for the Eighth Circuit.

See United States v. Pipes, 125 F.3d 638, 641-42

(8th Cir. 1997), cert. denied, 523 U.S. 1012 (1998). Pipes

holds that an evidentiary hearing is necessary where, as here,

a cooperating witness provided information that contributed

to the government’s case and the prosecutor, in an “about-

face,” refused to make a promised § 5K1.1 motion. The court

emphasized the inequities in denying a hearing where the

government’s proof, that the witness was “not completely

correct and that he was not being altogether truthful,” could

not be confronted through the crucible of cross-examination.

125 F.3d at 641.

Prisoners who have sacrificed so much, yet are deprived

of any relief, suffer a grievous wrong and should be

entitled to a hearing to investigate allegations that they

breached the cooperation agreement. This is especially

true where a defendant has received such a _ severe

sentence. The absence of full adversary testing of these

constitutional claims cannot help but erode our confidence

in the criminal justice system. See also Wade v.

13

United States, 504 U.S. 181, 185 (1992) (the government’s

discretion in refusing to file a § SK1.1 motion is subject to

constitutional limitations).

3. THE SECOND CIRCUIT'S DECISION,

WHICH ENABLES FEDERAL JUDGES TO

INTERFERE WITH THE PROSECUTION’S

EXECUTIVE DECISION TO FULFILL

ITS COMMITMENT TO A COOPERATING

WITNESS, VIOLATES THE SEPARATION

OF POWERS DOCTRINE AND CONFLICTS

WITH RECENT AUTHORITY FROM THE

SEVENTH CIRCUIT.

Review by this Court is also essential to maintain

the indispensable balance of powers that exists between

the judicial and executive branches of government

relating to prosecutorial discretion. Pursuant to the

strict mandates of §5KI1.1 and 18 U.S.C. § 3553(e), the

government has the exclusive authority to decide

whether to move for a downward departure based upon

substantial cooperation. Nevertheless, by pressuring the

government into reconsidering its decision, the district

court specifically intruded into the government’s discrete

province and deprived Petitioner of due process.

And, since the panel’s decision condones the district

court’s intrusion into the government’s exercise of its

prosecutorial discretion, it also conflicts with recent

authority from the Seventh Circuit holding that “except

with extraordinary justification a judge may not inquire

why or how the United States Attorney decided to file

a §S5K1.1 motion.” United States v. Zingsheim, 384 F.3d

867, 872 (7th Cir. 2004). Finally, a district judge’s

14

refusal to apply §5K1.1 “deprives the Executive Branch

of an inducement that can be used to solve old crimes

and deter new ones.” 384 F.3d at 870.

The Second Circuit’s exceptional stance, which

enables a judge to intimidate federal prosecutors into

withdrawing § SK1.1 motions, authorizes an impermissible

intrusion into the prosecutorial function and fully

warrants review by this Court.

Conclusion

For all the foregoing reasons, Petitioner prays that a

Writ of Certiorari issue to review the Second Circuit’s

opinion in this case.

Respectfully submitted,

HERALD PRICE FAHRINGER, Eso.*

ERicA T. DUBNO, Eso

LIPSITZ, GREEN, FAHRINGER, ROLL,

SALISBURY & CAMBRIA LLP

780 Third Avenue, 32nd Floor

New York, New York 10017

(212) 319-5351

GERALD J. DICHIARA, Esq.

LAW OFFICE OF GERALD J. DICHIARA

404 Park Avenue South

New York, New York 10016

(212) 679-1958

Counsel for Petitioner

* Counsel of Record

APPENDIX

A-1

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE

PUBLISHED IN THE FEDERAL REPORTER AND

MAY NOT BE CITED AS PRECEDENTIAL

AUTHORITY TO THIS OR ANY OTHER COURT,

BUT MAY BE CALLED TO THE ATTENTION OF

THIS OR ANY OTHER COURT IN A SUBSEQUENT

STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL

ESTOPPEL OR RES JUDICATA.

At a Stated Term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall

United States Courthouse, at Foley Square, in the City

of New York, on the 7th day of March, two thousand

and five.

PRESENT:

HON. DENNIS JACOBS,

HON. GUIDO CALABRESI,

HON. ROSEMARY S. POOLER,

Circuit Judges.

UNITED STATES OF AMERICA,

Appellee,

+. No. 04-2767

EDWARD MAGGIORE,

Defendant-Appellant.

For Appellee:

BARBARA D. UNDERWOOD, Assistant United

States Attorney, for Roslynn Mauskopf, United States

Attorney for the Eastern District of New York

(Pamela K. Chen, Assistant United States Attorney,

on the brief).

For Defendant-Appellant:

HERALD PRICE FAHRINGER, Lipsitz, Green,

Fahringer, Roll, Salisbury & Cambria, LLP, New

York, NY (Gerald J. Dichiara, Law Office of Gerald

J. DiChiara, and Erica T. Dubno, Lipsitz, Green,

Fahringer, Roll, Salisbury & Cambria, LLP, of

counsel ).

Appeal from the United States District Court for the

Eastern District of New York (Gleeson, /.).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the

judgment of the District Court is AFFIRMED.

Edward Maggiore appeals from a judgment of the

United States District Court for the Eastern District of

New York (Gleeson, /.) on May 13, 2004. Based on his

plea of guilty, Maggiore was convicted of murder in aid

of racketeering in violation of 18 U.S.C. § 1959(a)(1)

and sentenced to life imprisonment. We assume that

the parties are familiar with the facts, the procedural

context, and the specification of the issues on appeal.

Maggiore alleges that the government acted in bad

faith by withdrawing its motior pursuant to U.S.S.G.

§S5K1.1. However, despite Maggiore’s substantial

A-3

assistance to the government, the government had

reason to do so. Maggiore’s plea agreement expressly

states that “[s]hould it be judged by the Office that

the defendant has failed to cooperate fully, [or] has

intentionally given false, misleading or incomplete

information ... this Office will be released from its

obligations under this agreement, including ... to file

the (SX1]} motion.” The government conducted an

extensive, six-month investigation as to Maggiore’s

compliance with his plea agreement, and concluded that

he had lied concerning (at least) who took the gun out

of the trunk and the role of Aiwert Alvarado in the

killing. Here, “the explicit terms of [the] cooperation

agreement leave the acceptance of the defendant’s

performance to the judgment of the prosecutor,” therefore

“the prosecutor may reject the defendant’s performance

provided he or she is honestly dissatisfied.” United

States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990).

Maggiore does not deny that there were breaches

by him of the plea agreement, but he contends that the

government’s decision to act on those breaches was in

bad faith. He argues, first, that the government acted

at the direction of the district court, and, second, that

the government’s decision to withdraw his 5KI letter

while retaining it for another cooperating witness, Robert

Alvarado, was done without a good faith justification.

~Both of these assertions are unavailing.

As to the first, the government did not simply act at

the court’s behest, but only after a full investigation.

Additionally, the government maintained its position —

in opposition to the court — that Angel D’Angelo was

the shooter, and, as already stated, did not withdraw

its SKI motion as to Robert Alvarado, notwithstanding

the district court’s expressed belief that he, too, was

A-4

lying. Second, despite Maggiore’s claim of wrongful

disparate treatment of him as compared to Robert

Alvarado, the government has proffered justifications

for its decisions, and there is no reason to think

that these justifications were not what motivated the

government. The contrast between Maggiore’s reactions

when faced with his lies and the reaction of Robert

Alvarado, by itself, supported different treatment of

the two. Cf United States v. Fernandez, 127 F.3d 277,

286 (2d Cir. 1997); United States v. Brechner, 99 F.3d 96,

99-100 (2d Cir. 1996). Moreover, as the court itself

noted when it granted the other witness a downward

departure, the age, participation, etc. of Robert Alvarado

and Maggiore were significantly dissimilar. Therefore,

there is no showing of bad faith on the part of the

government. See United States v. Khan, 920 F.2d 1100,

1105-06 (2d Cir. 1990). In any event, the district court

made abundantly clear that it would not grant a

sentencing departure no matter what the government did.

Maggiore further asserts that the district court should

have recused itself because of its strong opinions as to

Maggiore’s lack of truthfulness. But the court’s view

was “formed by the judge on the basis of facts

introduced or events occurring in the course of the ...

proceedings” and therefore does “not constitute a basis

for a bias or partiality motion unless they display a

deep-seated favoritism or antagonism that would make

fair judgment impossible.” United States v. Liteky, 510

U.S. 540, 555-56 (1994). The district court judge did

not abuse his discretion by declining to recuse himself

on the basis of opinions he had formed over the course

of the proceedings surrounding this shooting. United

States v. Conte, 99 F.3d 60, 65 (2d Cir. 1996).

A-5

Maggiore makes an assortment of other related claims

as well: (a) that he was wrongly denied the assistance

of counsel at an interview during the Government’s

perjury investigation; (b) that the district court wrongly

deprived him of a good feith hearing in connection

with the Government’s withdrawal of the 5K1 letter; and

(c) that the use of jailhouse informants’ statements to the

Government without an opportunity for cross examination

violated the Confrontation Clause as interpreted in

Crawford v. Washington, 541 U.S. 36 (2004). But (a)

he expressly waived, in his cooperation agreement, the

assistance of counsel at such an interview, (b) the oral

argument held at sentencing gave Maggiore all he was

entitled to by way of a hearing, and (c) because the

introduction of the jailhouse informant’s statements was

in part not for their truth, and, insofar as they were used

for their truth, were unnecessary to establish Maggiore’s

breach, Maggiore’s Crawford claim fails.

Maggiore also argues that his sentence violated his

Sixth Amendment nmght to a jury determination of facts

that affect his sentence. However, under 18 U.S.C.

§ 1959(1), a conviction of murder in aid of racketeering

carnes a mandatory sentence of life imprisonment.

Thus, although the district court’s factual findings

resulted in a Guidelines sentence higher than what

Maggiore would have received on the basis of the

facts to which he allocuted at his plea, because that

sentence is identical to what, pursuant to the statutory

mandatory minimum, the district court would otherwise

have been required to impose, any error is harmless.

See United States v. Sharpley, F.3d , Nos. 04-2934,

04-2935, 2005 WL 357449, at *3 (2d Cir. Feb. 16, 2005).

A-6

We have considered all of Maggiore’s claims and

find them to be without merit. For the foregoing reasons,

the judgment of the district court is hereby AFFIRMED.

For the Court,

ROSEANN B. MACKECHNIE,

Clerk of Court

by:

A-7

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

FOR ONLINE

PUBLICATION ONLY

UNITED STATES OF AMERICA

- against - MEMORANDUM

EDWARD MAGGIORE,

Defendant. 01 CR 915 (JG)

AND ORDER

UNITED STATES OF AMERICA

~ against - 01 CR 1424 (S-1) (JG)

ALBERT ALVARADO,

Defendant.

UNITED STATES OF AMERICA

- against -

ROBERT ALVARADO,

Defendant.

02 CR 541 (S-1) JIG)

APPEARANCES:

ROSLYNN R. MAUSKOPF

United States Attorney

Eastern District of New York

One Pierrepont Plaza

Brooklyn, New York 11201

Pamela Chen

Assistant United States Attorney

A-8

GERALD J. DICHIARA

404 Park Avenue South

New York, New York 10016

Attorney for Edward Maggiore

LISA SCOLARI

20 Vesey Street, Suite 400

New York, New York 10007

Attorney for Albert Alvarado

MICHAEL A. MARINACCIO

Culleton, Marinaccio & Foglia

245 Main Street

White Plains, New York 10601

Attorneys for Robert Alvarado

JOHN GLEESON, United States District Judge:

Edward Maggiore, Albert Alvarado (“A. Alvarado”),

and Robert Alvarado (“R. Alvarado”) were accomplice

witnesses for the government in the case United States y.

D'Angelo, 02 CR 399 (JG). After hearing them testify,

I concluded that they did not testify truthfully. All

three defendants now face sentencing, and all three

have moved for my recusal. For the reasons set forth

below, the motions are denied.

BACKGROUND

The defendants’ testimony at the D'Angelo trial was

the principal focus of my decision granting Angel

D’Angelo a new trial, United States v. D'Angelo, No. 02

CR 399, 2004 U.S. Dist. LEXIS 2239, at *46-97 (E.D.N.Y.

Feb. 18, 2004), familiarity with which is assumed here.

The following additional facts are relevant to the instant

motions.

A-9

All three defendants signed cooperation agreements

with the government. All three promised, among other

things, to provide “truthful, complete and accurate

information,” including testimony. (Cooperation Agreements

43 (“Agreements”).') In exchange, the government

promised, among other things, to file motions pursuant

to U.S.S.G. §5KI1.1 and 18 U.S.C. §3553(e). These

so-called “substantial assistance” motions provide a

cooperating witness wiu: the prospect of a sentence below

the prescribed guideline range and any minimum

sentence mandated by statute, respectively. But they do

not guarantee such relief; as the cooperation agreements

state explicitly, the motions merely “permit the Court,

in its discretion,” to impose a _ sentence below the

guideline range and below any mandatory minimum

sentence. (Agreements 4 6.)

All three defendants were aware of the fact that

the government’s substantial-assistance motions were

necessary, but not sufficient, steps toward a lenient

sentence. Trial Tr. at 268 (A. Alvarado), 384 (Maggiore),

536 (R. Alvarado), D'Angelo (No. 02 CR 399). Each

knew that leniency required two events. First, the

government had to conclude that the defendant had

rendered substantial assistance and had otherwise

complied with his obligations under the agreement, in

which case it would file the required motion. Second,

the judge had to find that a departure (or a sentence

below an applicable mandatory minimum) was appropriate.

' The paragraph citations to the cooperation agreements are to all

three agreements unless otherwise specified.

A-10

In making that determination, the law expressly invites

the sentencing court to consider, among other things,

“the truthfulness, completeness, and reliability of any

information or testimony provided by the defendant.”

U.S.S.G. § 5K1.1(a){2).

On May 14, 2003, R. Alvarado first appeared before me

for sentencing. I informed him and the government at

that time of my belief that he, A. Alvarado, and

Maggiore had testified falsely. The sentence was adjourned.

In response to my finding of perjury, the government

conducted its own investigation, and it too has concluded

that all three witnesses committed perjury. As a result,

the government has invoked its contractual power to

withhold substantial assistance motions on behalf of

A. Alvarado and Maggiore. R. Alvarado has received

such a motion despite his false testimony.

DISCUSSION

The Alvarados and Maggiore argue that fairness

requires my recusal from their cases. Because I have

reached and expressed a conclusion about their

credibility, they contend, they must be sentenced by

another judge. As R. Alvaradc puts it, my stated

belief that he testified falsely “raises serious questions

regarding the Court’s ability to impartially consider

the 5K1.1 motion submitted on Mr. Alvarado’s behalf and

to impose a fair sentence.”

At bottom, the defendants’ real dispute is not with the

fact that [| have evaluated their credibility, but rather

with the outcome of the evaluation. If I had concluded

that they had testified truthfully, and that their testimony

had played a cnitical role in bringing a murderer to

justice, I have no doubt that all three would welcome

my proceeding to sentence them with that credibility

A-ll

determination in mind. Indeed, as mentioned above,

the governing guideline expressly states that I should

evaluate the defendants’ truthfulness.

However, after hearing their testimony, I did not

believe them. Indeed, I believed at tnal, and believe

today, that each committed perjury in an effort to get

credit at sentencing for helping to convict D’Angelo.

The government row agrees with that assessment.

While my conclusion will no doubt have a substantial

negative impact on each defendant’s sentence, it is no

reason to recuse.

A. Alvarado makes the additional argument that my

finding of perjury impairs my ability to fairly judge his

motion for an order requiring the government to file

a substantial assistance motion on his behalf. Since

perjury is a crime, and the government may withhold

the motion if the defendant commits a_ crime,

A. Alvarado contends that I have “prejudged whether

the prosecution has a legitimate basis for refusing to file

the motion.” (A. Alvarado’s Mem. Law at 1.)

This argument has no merit. First, it proves too much.

Judges are expressly invited by §5KI1.1 to evaluate

the truthfulness of a cooperating defendant’s testimony.

U.S.S.G. §5K1.1(a)(2). It would be odd indeed if

an evaluation that is adverse to the defendant entitled

the defendant to remove the judge, particularly where

(as here) the prosecutor also concludes that perjury

was committed.

My finding of perjury does not prejudge A. Alvarado’s

motion, in which he alleges that the government is

acting in bad faith. A finding of perjury by me is

not necessarily inconsistent with a finding that the

prosecutor has acted in bad faith. It is true that

A-12

my evaluation of the defendants’ credibility may

moot the bad-faith motion (that is, I may determine

that a departure would be unwarranted even if the

substantial-assistance motion were made), but it does not

prejudge it.

Given the facts underlying the recusal motions,

application of the law is not difficult. A federal judge

“shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned,” or

“{wjhere he has a personal bias or prejudice concerning a

party, or personal knowledge of disputed evidentiary

facts concerning the proceeding.” 28 U.S.C. § 455(a)-(b)(1).

Motions for recusal are committed to my “sound

discretion.” United States v. Conte, 99 F.3d 60, 65 (2d

Cir. 1996) (quotation marks omitted). “[A] favorable

or unfavorable predisposition” may warrant recusal

even where “it springs from the facts adduced or the

events occurring at trial,” but to do so it must be “so

extreme as to display clear inability to render fair

judgment.” Liteky v. United States, 510 U.S. 540, 55!

(1994); see also id. at 554 (“The fact that an opinion

held by a judge derives from a source outside judicial

proceedings is not a necessary condition for ‘bias or

prejudice’ recusal, since predispositions developed during

the course of a trial will sometimes (albeit rarely) suffice.”).

The Supreme Court held in Liteky that

judicial rulings alone almost never constitute a valid

basis for a bias or partiality motion. In and of

themselves (i.e. apart from surrounding comments

or accompanying opinion), they cannot possibly

show reliance upon an extrajudicial source; and can

only in the -rarest circumstances evidence the

degree of favoritism or antagonism required

when no extrajudicial source is involved. Almost

A-13

invariably, they are proper grounds for appeal, not

for recusal. Second, opinions formed by the judge

on the basis of facts introduced or events occurring

in the course of the current proceedings, or of

prior proceedings, do not constitute a basis for a

bias or partiality motion unless they display a

deep-seated favoritism or antagonism that would

make fair judgment impossible. Thus, judicial

remarks during the course of a trial that are critical

or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a

bias or partiality challenge. ... Not establishing bias

or partiality, however, are expressions of impatience,

dissatisfaction, annoyance, and even anger, that are

within the bounds of what imperfect men and

women, even after having been confirmed as federal

judges, sometimes display.

Id. at 555-56 (citation omitted); see also United States v.

Diaz, 176 F.3d 52, 112 (2d Cir. 1999) (affirming denial

of recusal motion where “the court’s rulings were events

that ‘occurred in the course of judicial proceedings,

and neither (1) relied upon knowledge acquired outside

such proceedings nor (2) displayed deep-seated and

unequivocal antagonism that would render fair judgment

impossible’” (quoting Liteky, 510 U.S. at 556)); Conte,

99 F.3d at 65 (“Events occurring in the course of

judicial proceedings generally do not constitute a basis

for recusal unless they indicate that the judge has a

‘deep-seated favoritism or antagonism that would make

fair judgment impossible.’” (quoting Liteky, 510 US.

at 555)). As an example of “such a high degree of

favoritism or antagonism as to make fair judgment

impossible,” the Court favorably cited Berger v. United

States, 255 U.S. 22, 28 (1921), which held that recusal

was appropriate where the trial judge said, during a

World War I espionage case against German American

defendants, “One must have a very judicial mind, indeed,

not [to be] prejudiced against the German Americans,”

as their “hearts are reeking with disloyalty.” Liteky, 510

U.S. at 555.

The Court also wrote in Liteky:

The judge who presides at a trial may, upon

completion of the evidence, be exceedingly ill

disposed towards the defendant, who has been

shown to be a thoroughly reprehensible person. But

the judge is not thereby recusable for bias or

prejudice, since his knowledge and the opinion it

produced were properly and necessarily acquired in

the course of the proceedings, and are indeed

sometimes (as in a bench trial) necessary to

completion of the judge’s task. As Judge Jerome

Frank pithily put it: “Impartiality is not gullibility.

Disinterestedness does not mean child-like innocence.

If the judge did not form judgments of the actors

in those court-house dramas called trials, he could

never render decisions.” Jn re J.P. Linahan, Inc.,

138 F.2d 650, 654 ( [2d Cir.] 1943). Also not

subject to deprecatory characterization as “bias”

or “prejudice” are opinions held by judges as a

result of what they learned in earlier proceedings.

Id. at 550-51.

Liteky is controlling here. As discussed above, U.S.S.G.

§ SK1.1(a)(2) expressly invites me to evaluate the

defendants’ truthfulness in determining the appropriate

departure. Indeed, it would have been a dereliction of

“my duty to the defendants, the government, and the

public at large not to have carefully done so. “Bias

or prejudice connotes an unfavorable opinion that is

A-15

somehow ‘wrongful or inappropriate’ because it is

undeserved, rests on knowledge one ought not to possess,

or is excessive.” Groden v. Random House. Inc., 61 F.3d

1045, 1053 (2d Cir. 1995) (quoting Liteky, 510 USS.

~ at 550). As my evaluation of the defendants’ trial

testimony is neither undeserved nor excessive, as

shown by the government’s investigation, and rests on

knowledge I acquired in the course of properly

discharging the obligations of my office, it is no basis

for my recusal.

Finally, defendants rely on comments I! made at the

oral argument of D’Angelo’s motion for a judgment

of acquittal. At the conclusion of that oral argument,

I stated, “I’m shaking up here. | feel sick with this case.

This case reeks. You [i.e., the prosecutor] can defend

this. You demonstrated you can defend this, but you

don’t have to. I can’t for the life of me figure out why

you are.” Dec. 16, 2003 Hr’g Tr. at 46, D'Angelo (No.

02 CR 399). The Alvarados and Maggiore suggest that

those comments evince strong personal feelings about

them, warranting my recusal.

These suggestions are not persuasive. The quoted

remarks, which occurred in D'Angelo, accurately reflected

my disappointment with the government’s determination

to deny a new trial to a defendant whose conviction

was obtained based on accomplice testimony that

the government itself agreed was perjurious. That

disappointment, and the reasons for it, are expressed at

length in my sixty-page opinion granting D’Angelo’s

motions. Since I assume familiarity with that decision, I

will not reiterate here the extensive factual underpinnings

for the remarks now seized upon by the moving

defendants. It suffices to say that the feelings they

express were directed toward the government, which

A-16

has not moved for my recusal,’ and therefore — as they

express no bias or prejudice towards the defendants

before me — are not grounds for recusal.

In sum, because my impartiality could not reasonably

be questioned, and because the defendants have not

shown “personal bias or prejudice concerning a party,”

28 U.S.C. § 455(a)-(6)(1) — because I have no such bias

or prejudice — the recusal motions are denied.

So Ordered.

/s/ John Gleeson

JOHN GLEESON, U.S.D.J.

Dated: Apmil 8, 2004

Brooklyn, New York

? If it had, | would deny that motion as well. A judge’s expressed

disapproval, on fairness grounds, of the government's position in a

criminal case would scarcely be a basis for recusal.

A-17

UNITED STATES DISTRICT COURT [1]

EASTERN DISTRICT OF NEW YORK

UNITED STATES ~ CR-01-915,

OF AMERICA, CR-01-1424

-against- _ United States Courthouse

EDWARD MAGGIORE, ‘ Brooklyn, New York

ALBERT ALVARADO, pala’ 2060

Defendants. 2:00 o’clock p.m.

TOPO POPP eee eee eee eee Cee eee eee eee eee eee

TRANSCRIPT OF MOTION-SENTENCE

BEFORE THE HONORABLE JOHN GLEESON

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff: ROSLYNN R. MAUSKOPF

United States Attorney

BY: PAMELA CHEN

Assistant United States Attorney

225 Cadman Plaza East

Brooklyn, New York 11201

For the Defendant! GERALD DiCHIARA, ESQ.

For E. Maggiore.

LISA SCOLARI, ESQ.

For A. Alvarado.

Court Reporter: Henry R. Shapiro

225 Cadman Plaza East

Brooklyn, New York

718-260-2509

Proceedings recorded by mechanical stenography,

transcript produced by CAT.

[24]

they were smoking marijuana every day. They smoked

marijuana before this incident and after this incident

THE COURT: I understand. Thank you.

The motion is denied for two reasons: It’s both moot

and meritless. It’s not unimportant so I will address the

merits in a moment. It is moot because I would not depart

on the ground of substantial assistance even if a motion

were made. It is meritless because the government has

acted in good faith.

Paragraph 3 of the defendants’ agreement with the

Government require them to provide truthful, complete

and accurate information, including testimony. The

government promises in those agreements to make a

substantial assistance motion, if it determines that the

defendant has cooperated fully, provided substantial

assistance and otherwise complied with the terms of the

agreement.

As usual the government arrogates to itself the mght

to make a good faith determination, as to whether the

defendant has complied with the terms of the agreement,

and states here in its agreement with both defendants,

that the offices’ good faith assessment as to the

completeness and accuracy of the cooperation shall be

binding upon the defendant. The government also reserves

the right to be released from an obligation to make a

substantial assistance motion in the event it judges that

the defendant has failed to

A-19

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(26]

threatened to kill him if he continued to implicate

Albert Alvarado in the Palazzatto homicide. Maggiore

A-20

e in the car containing the murderers, some testified

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(27)

for this murder. Suddenly stopped, according to him,

because he was threatened by Albert Alvarado. The

A-21

government tells me that from the very outset of his

cooperation, it was concerned that Maggiore claimed

not to recall who took the murder weapon from

beneath the hood of the car right before it was used to

kill Palazzatto.

Obviously, that is a fact, I disagree with Mr. DiChiara.

Obviously, that is a fact that matters a lot. Sort of thing

that one would recall. You are about to commit a

murder, who got the gun? The government was concerned

about that from

concerned about that before

the start. It had plenty of reason to be

the trial even. Three of

these fellow i of Maggiore came forward and

said that what he told the government, that he was lying

March 18, 2003, “Maggiore was driving, he opened the

hood from the inside, released it, got out and got the

gun.” Maggiore plead guilty

(28]

to depraved indifference homicide. He used the phrase

reckless disregard of the risk that Palazzatto would

be shot. But then, as he was prepared for trial, because

I assume he testified consistent with what he said

during his trial preparation sessions, his story morphed

into being shocked, surprised that Palazzatto was shot,

wasn’t supposed to happen he testified. He was stunned.

How that can be squared with the sworn statement to

me when he plead guilty that he exercised depraved

indifference to human life, to Palazzatto’s life, is beyond

A-22

me. I will stop there, but as near as I can tell the

government was willing to overlook all of those lies

and more.

These defendants had quite an ally in the prosecutor.

But then after I informed the government that | thought

its witnesses Were liars, to its - credit, | mean that,

I’ve been hard on the government because much is

expected of the government. It’s not an ordinary advocate.

It has to answer to a higher calling.

Counsel over here on my left are obligated to zealously

advocate the individual interests of their clients’. They

have done so. They have done so well under difficult

circumstances.

The government isn’t so situated. Its job is to do

justice and I have been hard on the government. | give

it credit now for conducting a thorough investigation in

good

[29]

faith and uncovering more perjury that it has decided in

good faith cannot be overlooked.

I reject out of hand any notion that the fact that Ms.

Chen showed a good heart in filing a 5k, a substantial

assistance motion, for Robert Alvarado, ought to inform

or indicate bad faith in connection with her decision

with these two defendants.

On its face those are contradictory propositions that

someone has a good heart is, therefore, acting in bad

faith with others. But on a more lawyerly level what a

material incentive that would be, disincentive it would

be for the government to exercise some compassion, if

A-23

it felt as though it had to deny substantial assistance

motions to everyone as to whom it could be denied on

pain of being found in bad faith for denying it in cases

like this, then the Robert Alvarado’s of the world

would be stuck, the government would be forced not

to exercise some judgment and compassion.

I reject that argument. The government writes in its

letter to me in connection with Albert Alvarado motion:

“There can be no more fundamental breach than lying

about oneself in the crime the defendant is cooperating,

especially when this crime is murder. Such a breach

clearly justifies the government’s decision to withhold

a SK1.1 letter.” 7

Now, in fairness to Albert Alvarado I acknowledge

that the government has not always had that view.

A couple of

(30)

months ago, when they were trying-to uphold a

conviction based on that same exact testimony,

it characterized it as collateral and not material and

camulative. Citations to those characterizations are set

forth on page 47 of my memorandum and order granting

the motion in the DeAngelo case. It’s hard to reconcile

those statements, but I have no doubt that now they

have gotten it mght, these are fundamental breaches.

There can be no more fundamental breach than lying

about ones role in the murder. Is this good faith? Of

course, all you need to do is canvas the cases, you look

at the mini misstep, the minuscule microscopic misstep

in a case like Brechner, that justified the prosecutor’s

withholding a substantial assistance motion, and this is --

these are lies -- these are missteps of a fundamentally

different magnitude. Of course, it’s good faith.

A-24

To the extent that the motions are based on Meany

they are just meritless. Paragraph five of the agreements,

which was predicted by Ming He itself, by the Second

Circuit in Ming He,, waives the right. If I were writing

I would put that phrase, that word in quotations, waives

the right conferred by Ming He as the Second Circuit

predicted would happen.

There is some dispute about Ms. Scolari not being

present for the polygraph, the questioning after

the polygraph, that Albert Alvarado failed. | really

don’t need

(31]

to resolve that. Robert Alvarado gave up the existence

of this conversation that occurred right before the

homicide, so did Maggiore. He still Goes sort of. He

says a 75-percent chance this critical conversation

occurred that would have altered the character of the

entire case in which they testified. If I had to resolve

the dispute about Ms. Scolari’s absence in the post

polygraph questioning, I would resolve it against Alpert

Alvarado. I would conclude that it was fairly a part of

the polygraph itself that she chose not to be present

for. I would also conclude it was embraced by the

waiver in paragraph five.

I will add this respectfully, with respect to the Ming

He part of this motion. That case is premised on the

notion had a cooperator needs protection from AUSA’s.

Lawyers ought to be there to protect accomplice witnesses

from their adversary, the assistant.

There is no question that Maggiore and Albert Alvarado

were meeting with an adversary, when they met with

Ms. Chen and her agents and other AUSA’s. But |

A-25

will suggest here, as I have elsewhere, focusing on

protecting the accomplice witness shouldn’t result in

a loss of sight of the interest of another set of defendants,

the ones against whom those accomplices may

eventually testify.

In theory it’s true: Cooperating defendants have a lot

to worry about in their dealings with AUSA’s. In the real

(32]

world, they don’t have enough to worry about. The

relationship, if anything, makes prosecutors all to

willing to forgive their witnesses when they lie, even

though these defendants are making this motion and

have been depraved of a substantial assistance motion.

Hardly anything could prove the point better than the

fact that Robert Alvarado still has his _ substantial

assistance motion pending on his behalf.

There is an echo, not an explicit argument, but an

intimation in the moving pepers that a sufficient response

to the government’s position was precluded by the

timing of these motions and this hearing. I reject that.

A full eleven months ago I expressed my view that the

accomplices in this case had lied.

On February 18th of this year I issued the DeAngelo

decision, which in no uncertain terms expresses the

same view. The sentence for Robert Alvarado was

scheduled for February 27th. I received a couple of

motions to adjourn it that had no explanation.

For example, in Ms. Chen’s February 24th letter she

asks for more time in a one paragraph letter, didn’t say

why I denied it.

A-26

I finally got a letter from Mr. DiChiara dated

February 24th, that explained to me why the adjournment

was needed. Said he wasn’t fully informed of the

government’s investigation, they still might file a 5k.

(33]

[ put the motion over to March 12th. Just before that

date Ms. Scolari informed me that she intended to make

the motions that have been decided here this afternoon.

I put it over again until today. There has not been a

shortage of time. I understand the reluctance of counsel

to proceed to sentence in the current state of affairs, but

I have no doubt they have had ample opportunity to

marshal the facts, make their arguments. I reject

the motions.

The marshals please take Mr. Maggiore back. We will

proceed to sentencing on Albert Alvarado.

A-27

- UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

THURGOOD MARSHALL U.S. COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

Roseann B. MacKechnie

CLERK

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the Thurgood Marshall United

States Courthouse, Foley Square, in the City of New York,

on the 22nd day of July, two thousand five.

| UNITED STATES COURT OF APPEALS

- PILED

JUL 22 '2005

Roseann B. MacKechnic, CLERK

Present: SECOND CIRCUIT

meee

Hon. Dennis Jacobs,

Hon. Guido Calabresi,

Hon. Rosemary S. Pooler,

CIRCUIT JUDGES.

USA v. Maggiore, 04-2767-cr

A petition for panel rehearing and a petition for rehearing

en banc having been filed herein by the appellant Edward

Maggiore. Upon consideration by the panel that decided

the appeal, it is Ordered that said petition for rehearing

is DENIED.

It is further noted that the petition for rehearing en banc

has been transmitted to the judges for the court in

regular active service and to any other judge that heard

the appeal and that no such judge has requested that a

vote be taken thereon

A-28

For the Court,

Roseann B. MacKechnie, Clerk

By: /s/ Tracy W. Young

Motion Staff Attorney