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November 20, 1992


The opinion of the court was delivered by: JACK B. WEINSTEIN


 Defendant Michael Sessa was convicted, pursuant to an eight-count indictment, of racketeering, racketeering conspiracy, murder, murder conspiracies and loansharking conspiracies. The testimony of Joseph Ambrosino, a coconspirator who pled guilty, comprised a major portion of the government's proof. Defendant sought to call as a witness the psychologist who examined Ambrosino in connection with the government's evaluation for the Witness Protection Program. The court barred defendant from calling her as a witness. Defendant moves to set aside the verdict on the ground, among others, that he was denied an opportunity to present a defense. The case against defendant's position is patently clear. Yet it was so strongly urged that a brief analysis is warranted.


 A. Trial and Conviction of Defendant

 A jury found defendant guilty of racketeering and racketeering conspiracy in connection with the activities of a criminal organization, the Colombo crime family. 18 U.S.C. §§ 2, 892, 894, 924(c)(1), 1959(a) and 1962(c) and (d).

 Defendant's responsibility was to supervise a "crew" which committed crimes to generate proceeds for the criminal enterprise. Joseph Ambrosino was assigned to defendant's crew. Ambrosino became a target of a government investigation of the affairs of the Colombo organization. After his arrest in June of 1992, he became a cooperative witness as part of a plea bargain.

 Much of the government's case against defendant was the fruit of Ambrosino's cooperation. He occupied the witness stand for almost three full days. He provided a lengthy and detailed account of defendant's role in the Colombo organization and the offenses charged. In addition, the jury heard tape recordings made by the government containing conversations that took place in Ambrosino's car about defendant's extensive involvement in the crimes charged.

 Defendant's able counsel witheringly cross-examined Ambrosino for more than a day. He delved deeply into numerous matters affecting credibility, such as Ambrosino's extensive criminal conduct, brutality, drug use, repeated perjury and general unreliability. Other witnesses established Ambrosino's propensity to lie and exaggerate. His plea bargain provided a strong motive to support the government's case in return for a lighter sentence and favored treatment in the Witness Protection Program. He was biased against defendant, who had abused him. In short, his impeachment was a classic example of the value of cross-examination. That the jury ultimately credited his testimony reflects the strength of the corroborative evidence of guilt.

 Ambrosino had sought protection under the Federal Witness Protection Program. As a candidate, he was required to submit to a psychological examination. The examination was conducted over two days in September 1992 by a psychologist retained by the government. According to this psychologist's report, the purpose of the examination was to "assist the [Federal] Office of Enforcement Operations in determining the suitability of this candidate for placement in the Witness Security Program.

 The psychologist's examination consisted of seven components: the Rorschach Inkblot Test, a personality measure; human figure drawing, a means of evaluating thinking processes and emotions; self-directed search, a means of measuring working skills; the Minnesota Multiphasic Personality Inventory, a series of 37 questions dealing with personality traits; the Bender Gestalt Test, which measures visual-motor coordination and is used to rule out brain damage; the Wechsler Adult Intelligence Test Revised, a standard intelligence test; and a clinical interview covering the subject's history and background.

 During the evaluation, Ambrosino denied any history of psychological treatment and denied ever having "abused" alcohol or drugs. The psychologist summarized her findings and conclusions in a written report. She found him "cooperative, relaxed and verbal" and "logical and coherent." His memory functions were described as "above average" with no evidence of brain dysfunction. His I.Q. was "in the low average range."

 The psychologist determined Ambrosino's "social intelligence" to be "below average." Not surprisingly, she found that this professional hoodlum "lacks an understanding of the norms and ethics that regulate society" and that his thinking could be described as "simplistic and concrete." Ambrosino, she noted, "tended to endorse items indicative of antisocial behavior such as the promotion of delinquent acts (lying, stealing, and superficial relationships)." Despite these problems, in her view, he "took an open and honest approach to answering questions asked of him" and did not "appear to be invested in minimizing or enhancing his perceived faults."

 The psychologist observed that Ambrosino "does not appear to display any signs of a thought disorder or a mental illness." She did find that he "appears to have a paranoid orientation toward life," which she attributed in part to his high security status. She found him to be "experiencing some feelings of depression, anxiety and pessimism about his future."

 The psychologist concluded her report by offering her forecast about Ambrosino's participation in the Witness Protection Program. She stated that since Ambrosino "has a history of breaking rules and not learning from his mistakes, it is unlikely that he will follow the program's rules." She also concluded that since he "has a long child and adult criminal history, it is likely that he will commit a crime again" and that, because of his "history of aggressive and impulsive behavior," he ...

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