# Petition for Writ of Certiorari — Maggiore v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 1035

## Text

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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paraphrasing
*s a 1990 case.
reject the
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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

oh te
5

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0376%3A1. Public record. Not legal advice.