The opinion of the court was delivered by: LEONARD B. SAND
In an Opinion issued on January 14, 1993, this Court found that the four remaining defendants in this case -- Donald Carson, Anthony Gallagher, George Lachnicht, and Venero Mangano -- were liable for violating the civil RICO statute, 18 U.S.C. § 1962(c). See United States v. Local 1804-1, Int'l Longshoremen's Assoc., 812 F. Supp. 1303 (S.D.N.Y. 1993) (the "Liability Opinion"). Three of these defendants -- Carson, Gallagher, and Mangano -- have moved, pursuant to Fed. R. Civ. P. 52(b), to amend several of this Court's findings of facts and conclusions of law as set forth in the Liability opinion. The government opposes the motions.
For the reasons that follow, the defendants' motions are granted in part, and denied in part. Familiarity with this Court's Liability Opinion is assumed.
Fed. R. Civ. P. 52(b) provides in pertinent part:
Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. . . . When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment.
The purpose of post-judgment motions under Rule 52(b) is to give the district court an opportunity to correct manifest errors of law or fact at trial, or in some limited situations, to present newly discovered evidence.
"This is not to say, however, that a motion to amend should be employed to introduce evidence that was available at trial but was not proffered, to relitigate old issues, to advance new theories, or to secure a rehearing on the merits." Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986). Similarly, a party who realizes, with the acuity of hindsight, that he failed to present his strongest case at trial, is not entitled to a second opportunity by moving to amend a finding of fact or a conclusion of law. Id. at 1220; see also 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2582 (1971). To entertain Rule 52(b) motions in such a fashion would defeat the compelling interest in the finality of litigation.
Thus, to succeed under Rule 52(b), the defendants must show that the Court's findings of fact or conclusions of law are not supported by the evidence in the record.
1. The Gallagher Confession
Of all the arguments advanced by the parties in these motions -- and there are many -- the most important concerns the admissibility of defendant Gallagher's criminal trial testimony which this Court has referred to as the "Gallagher confession." See Liability Opinion, 812 F. Supp. at 1323-24. One page from the transcript of Gallagher's criminal trial testimony was admitted in this civil case as GX 5592A. In that testimony, Gallagher was cross-examined by the prosecutor about a conversation Gallagher had had with John Barbato which the government intercepted during undercover electronic surveillance. There can be no doubt that the cross-examination of Gallagher was based on a transcript of the intercepted conversation between Gallagher and Barbato. A transcript of the recording of the conversation between Gallagher and Barbato was also admitted in this civil case as GX 109AA DIG. The relevant text of the Gallagher's criminal trial testimony is as follows:
Q. The top of the page, eight lines from the top, you said:
"So Benny made a division. $ 10 to Newark. $ 5 to Mike Losito. $ 5 to him and Macey and I should give $ 5 to Donald Carson, and tell Donald don't give anything to Macey. I'll take care of him."
The Benny that you talked about there was Benny Mangano. Isn't that true Mr. Gallagher.
Q. And the $ 5 to him and Macey, Macey is Mr. John DiGilio?
A. That's correct. That's correct.
Q. And the division that you were talking about was $ 25 a container; isn't that true, Mr. Gallagher?
Q. Yeah. Whatever the ...