Defendant appealed from an order of the United States District Court for the Southern District of New York, David N. Edelstein, Judge, which denied a motion to vacate criminal contempt conviction alleging that the prosecution suppressed information supporting a duress defense. Held, (1) no suppression of evidence where defendant know of or had actual possession of materials and (2) duress defense not established where defendant showed only a generalized fear and did not show reasonable steps taken to escape compulsion. Affirmed.
Lumbard, Oakes, and Kearse, Circuit Judges.
Michael Esposito appeals from an order of the United States District Court for the Southern District of New York, David N. Edelstein, Judge, denying a motion to vacate a judgment of conviction for criminal contempt for refusal to obey a court order to testify before a federal grand jury. Esposito argued to the district court and argues here that the Government improperly failed to disclose evidence in its possession relative to his fear of testifying, in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and that the allegedly suppressed information would have supported a defense of duress. We affirm.
On April 25, 1985, Esposito was ordered to testify before a federal grand jury in the District of New Jersey under a grant of statutory use immunity pursuant to 18 U.S.C. § 6001 (1982). He defied the court order and was jailed as a civil contemnor for over three months under 28 U.S.C. § 1826(a) (1982). Meanwhile, on July 2, 1985, on the application of the United States Attorney for the Southern District of New York, Judge Mary Johnson Lowe issued a writ of habeas corpus ad testificandum directing that Esposito be produced to testify before the Southern District grand jury. After several adjournments at Esposito's request, on July 31, 1985, Judge Peter K. Leisure ordered Esposito to testify before the Southern District grand jury under a grant of statutory use immunity. On August 1, 1985, Esposito defied this order and once again was jailed for civil contempt. Three times between August 20, 1985 and December 4, 1985, Esposito sought orders releasing him from confinement on the ground that continued confinement would not persuade him to testify as ordered. He cited testimony given by FBI Special Agent Dennis Marchalonis at the pretrial detention hearings of Martin Taccetta and Michael Accetturo, two the the men indicted by the New Jersey federal grand jury. The agent testified that associates of Taccetta and Accetturo had beaten Esposito in 1984 and that Esposito had told Marchalonis in April 1985 that the reason he had refused to testify in District of New Jersey was fear of reprisal. On January 30, 1986, Judge Leisure granted Esposito's third motion for release finding that there was "no realistic possibility that continued confinement might cause Esposito to testify."
Immediately thereafter, on January 31, 1986, Esposito was indicted in the Southern District of New York for criminal contempt. On March 24, 1986, he moved for an order dismissing the indictment on the ground that successive contempt proceedings violated his right to due process of law and constituted prosecutorial misconduct. He also filed a motion to compel pretrial discovery of any material in the Government's possession relating to his claimed fear of testifying before the grand jury. In support of the motion to dismiss, Esposito once again relied upon Agent Marchalonis's testimony at the New Jersey hearings: "Agent Dennis Marchalonis testified, inter alia, that at least two of the defendants were demonstrably dangerous and violent individuals citing as an example the physical beating they administered to Michael Esposito in 1984." Judge Edelstein denied both motions, observing that it was well settled that fear is not a defense to a charge of criminal contempt. United States v. Esposito, 633 F. Supp. 544, 547 (S.D.N.Y. 1986). The court nevertheless found that Esposito's fear would be relevant at sentencing and hence ordered that, in the event of Esposito's conviction, the Government must produce all materials bearing on his fear prior to sentencing. Id. On May 13, 1986, Esposito served, but evidently did not file, a motion seeking to have the opinion denying his motions made part of the trial record, asserting that he had a viable duress defense to the contempt charge. On May 22 a pretrial conference was held on the unfiled motion that which the district court reviewed the essential elements of a duress defense. Counsel made a proffer that Esposito would testify (1) that he had had business dealings with Michael Taccetta and Robert Caravaggio, both subjects of the New Jersey grand jury investigation, that in connection with those business dealings they had beaten him in June 1984, and that as a consequence, Esposito was afraid to testify against them; and (2) that when Esposito appeared in the District of New Jersey in April 1985, FBI Agent Marchalonis told him that Taccetta and Caravaggio were dangerous and violent individuals who posed a threat to his physical safety.
Judge Edelstein held that even if the proffer were credited, it failed as a matter of law to establish a defense of duress. Accordingly, a trial on stipulated facts began and ended on May 23, 1986. Esposito was found guilty of criminal contempt. Sentencing was scheduled for June 27, 1986, but later postponed, at Esposito's request, to July 11.
On July 10 the Government provided Esposito with the information it possessed regarding his claimed fear of testifying. This included:
(1) an affidavit of Assistant United States Attorney Mark R. Hellerer stating that Esposito and counsel had met with him and several FBI agents on July 3, 1985, that Esposito had freely discussed the subjects concerning which he had been subpoenaed to testify and in no way suggested that fear would prevent him from testifying, and that Esposito's father, Salvatore Esposito, had told Hellerer that fear was not the reason Esposito had refused to testify;
(2) the transcript of the August 1, 1985, civil contempt proceeding before Judge Leisure;
(3) the transcript of the testimony of Salvatore Esposito before the Southern District grand jury on October 22, 1985 -- testimony to the effect that his son had told him that he had refused to testify in the grand jury solely to avoid incriminating himself and that he had sought and obtained the assistance of Anthony Salerno to force Taccetta to relent;
(4) the affidavit of another Assistant United States Attorney summarizing hearing transcripts, memoranda, and other evidence presented at the New Jersey pretrial detention hearings of Taccetta and Accetturo; attached to the affidavit were (a) memoranda of law summarizing information concerning a business relationship between Esposito and two criminal associates of Taccetta and Accetturo which had given rise to Esposito's 1984 beating, and representing that a confidential source and informed FBI Agent Marchalonis that the defendants under indictment in the New Jersey case were planning to kill Esposito because we already had "told the FBI everything"; (b) a certification executed by Esposito in June 1985 in connection with the New Jersey civil contempt proceedings in which he claimed that his refusal to testify was based on his fear of reprisals; and (c) five excerpts from Agent Marchalonis's testimony indicating that Esposito had told him that his refusal to testify in the grand jury was based on his fear of reprisals, and that he had been beaten by two associates of Taccetta and Accetturo, and that because Taccetta believed that Esposito had cooperated with the Government, Esposito would be "handled" when he was released from prison.
After receiving these materials from the Government, Esposito requested his sentencing date be adjourned until September 2, 1986. The Government consented. Four days before that date, Esposito moved to vacate his conviction and dismiss the indictment with prejudice, charging that the Government's pretrial suppression of the District of New Jersey materials provided to him on July 10, 1986, constituted "gross misconduct." Judge Edelstein denied the motion, holding that the Government had not suppressed anything because Esposito clearly knew, or should have known, of all the information in question. United States v. Esposito, 654 F. Supp. 664, 666-67 (S.D.N.Y. 1987). He also held in the alternative ...