The opinion of the court was delivered by: TRAVIA
The defendant, Carmine J. Persico, Jr. (hereinafter "Persico"), moves by way of an order to show cause, pursuant to Rule 33, Fed. R. Crim. P., for an order granting him a new trial upon the grounds of (a) newly discovered evidence, (b) recantation of trial testimony by the chief prosecution witness, and (c) suppression of material evidence by the prosecution; he also seeks a hearing upon his motion.
The facts underlying Persico's conviction have been amply set forth in the previous opinions which have been rendered in this case by the Court of Appeals, Second Circuit, and by the United States District Court for the Eastern District of New York.
A brief summary of the case and the facts on which the motion is based is appropriate, however.
On April 28, 1960, an indictment was filed against Persico and several other persons charging them with various crimes arising from the July 1959 hijacking of a truck from the Akers Motor Lines terminal in Brooklyn, New York. On May 9, 1968, after the fifth in a series of five trials,
a jury returned a verdict of guilty against Persico and three codefendants on charges of robbery of merchandise moving in interstate commerce (18 U.S.C. § 1951) and of conspiracy to commit the robbery. Judgment of conviction was entered against Persico, and he was sentenced to terms of imprisonment of fourteen and nine years respectively on each count of the indictment, the sentences to run concurrently. The Court of Appeals, Second Circuit, affirmed the conviction, United States v. Persico, 425 F.2d 1375 (1970), and the United States Supreme Court denied certiorari, 400 U.S. 869, 91 S. Ct. 102, 27 L. Ed. 2d 108 (1970).
On October 21, 1970, Persico and the three codefendants with whom he was convicted commenced proceedings before the judge who had conducted the fifth trial, the Honorable John F. Dooling, Jr., for an order granting them a new trial on the basis of newly discovered evidence. After a hearing on the motion, Judge Dooling issued on June 21, 1971, a memorandum and order denying the motion. United States v. Persico, No. 60-CR-147 (E.D.N.Y., filed June 21, 1971). The defendants were continued on bail pending appeal.
On January 13, 1972, the Court of Appeals, Second Circuit, affirmed the denial of the motion for a new trial. United States v. Persico, 454 F.2d 721 (1972). The defendants were ordered to commence serving their sentences at 10:00 A.M. on January 27, 1972.
The motion now before this Court, brought on by way of an order to show cause, was filed on January 26, 1972 and was made returnable on February 7, 1972. Included among defendant's moving papers was an affirmation of Henry J. Boitel, who was identified as counsel to Maurice Edelbaum, attorney for Carmine Persico, Jr. The Boitel affirmation sets forth the facts which allegedly gave rise to this proceeding.
It is alleged that after having been notified that he would receive a statement from Gasper Vaccaro, the principal government witness against the defendant Persico, Mr. Edelbaum did receive, on January 25, 1972, a 20 page transcript of an unsworn statement entitled "In the Matter of the Statement of Gasper Vaccaro." The transcript is described in the moving papers as
". . . a complete and unqualified recantation by Mr. Vaccaro of all his prior testimony implicating the defendant Persico to any degree in the crimes for which Mr. Persico stands convicted." (Boitel Affirmation, p. 3).
"Finally, it appears [from the statement] that Vaccaro has known 'from the very beginning that there was a mixup as to which hijacking the defendant had been associated with . . and this was known by the Assistant United States Attorneys who were in charge of the earlier prosecutions of this case." (Boitel Affirmation, p. 3).
It is argued that the complete and unequivocal recantation exculpating Persico and the suppression of material evidence by the prosecution call for the granting of a new trial as a matter of due process or at least in the interest of justice.
The original transcript of the Vaccaro statement has also been filed with this Court. (Defendant's Exhibit B). It was made in the presence of Frank A. Lopez, Esq., Vaccaro's attorney, on January 23, 1972, and was transcribed by one, Myron Geist, a court reporter. The statement was not sworn to by Mr. Vaccaro at the time it was made.
The statement presents the following factual situation. On January 19, 1972, his recollection of the events to which he had previously testified having been refreshed by the hearing conducted on the defendants' motion for a new trial before Judge Dooling, at which he had again testified, and by conversations with agents of the Federal Bureau of Investigation and with members of the United States Attorney's staff prior to the said hearing, Vaccaro went to the chambers of Judge Dooling to recant his trial testimony.
(Tr. 8, 10-12).
He states that he informed Judge Dooling, in the presence of the United States Attorney for the Eastern District of New York and several of his assistants, that he had been mistaken in his testimony and that the defendant, Carmine Persico, Jr., and one of his codefendants, one Hugh McIntosh, were not involved in the hijacking in question. (Tr. 10). After being advised by Judge Dooling to consult an attorney, Vaccaro contacted Mr. Lopez on January 21, 1972; his statement was transcribed on January 23, 1972. (Tr. 1, 13).
The following points are made in the statement:
(1) During the course of five trials, various hearings, and before the Grand Jury, Vaccaro testified that Persico was a member of the group that conspired to and did hijack a truck from the Akers Motor Lines terminal in Brooklyn, in July 1959; the testimony related to the specific crimes for which Persico was indicted, stood trial, and was convicted. (Tr. 1-2; 6; 12-13; 17).
(2) Vaccaro is cognizant of the consequences of his recantation; he realizes he is subjecting himself to a possible federal indictment for perjury and its attendant punishment. (Tr. 5; 17-18). He states that his statement is made voluntarily; without threat, pressure or promise of consideration of any kind; and that it is completely unsolicited by anyone. (Tr. 5-6; 9). He also states that although Joseph J. Marcheso, the federal prosecutor, who conducted the second, third, and fourth trials, did not live up to his bargain with him, he is not making his statement to spite anyone in the United States Attorney's Office.
(Tr. 16-17). Vaccaro purports to make his statement because
". . . I feel with all the possible punishments that I am facing, I still feel inwardly that the mistakes were made from the beginning, there was a bunch of confusion, and the confusion later on was ironed out in these trials, and the mistakes were made, not intentionally, unintentionally, and then, as the years passed by, and none of them ever went to jail, and now that he was convicted on the wrong [hijacking] through my mistake, I feel it is my duty to correct it, and that's it." (Tr. 19).
(3) Although Vaccaro informed Judge Dooling that neither Persico nor Hugh McIntosh were involved in the Akers hijacking, he now realizes after "going over in my mind" that "it wasn't so that I was mistaken there also" and that only the defendant Persico was not involved. (Tr. 10-11). It must be noted that this change in recollection occurred within four days after seeing Judge Dooling.
(4) The transcript reads in that part pertinent to the recantation of testimony implicating Persico in the crimes for which he was convicted that:
"In this particular hijacking that Carmine Persico was convicted of, I find in my mind that he was involved in other hijackings, and I have mistaken him to be part of this particular hijacking, which he had nothing to do with." (Tr. 10).
"Q Now, Mr. Vaccaro, when did you first realize that Carmine Persico was not involved in the hijacking for which he was convicted in the District Court?
A Well, I had an idea, but I didn't really know on what hijacking he had nothing to do with, until the matter came up when the FBI and the U.S. Attorney's Office spoke to me before the hearing [on the previous motion for a new trial] and asked me who Harry O'Shea was." (Tr. 11-12).
"Q Now, just to make sure, the hijacking that we are talking about is the one that Carmine Persico was convicted of; is that correct?
Q Was it any specific hijacking known by any specific name?
Q And this was the hijacking that Persico was convicted of; is that correct?
"Q Are you telling us now that Carmine Persico was not involved?
A Not in that particular one, no, sir.
Q Are you telling us that you were mistaken in your testimony before the Court and the Jury with regard to the ...