The opinion of the court was delivered by: I. LEO GLASSER
GLASSER, United States District Judge:
The defendant was convicted upon a trial by jury of Racketeering, in violation of 18 U.S.C. § 1962(c) (Count One), the predicate acts of racketeering for which were violations of 18 U.S.C. § 1955 (illegal gambling business); 18 U.S.C. §§ 892 and 894 (extortionate extensions and collections of credit); 18 U.S.C. § 1952 (interstate travel and communication incident to illegal gambling and loansharking), and of Racketeering Conspiracy in violation of 18 U.S.C. § 1962(d) (Count Two). His co-defendant, Giuseppe Gambino, was acquitted on both counts. Jury selection commenced on April 19, 1993 and a verdict was rendered on May 11, 1993. The proceedings are recorded in a transcript of approximately 1700 pages.
The defendant thereafter moved this court for a new trial pursuant to Rule 33, Fed. R. Crim. P. His motion is bottomed upon two grounds: (1) the failure of the government to disclose that Salvatore Gravano perjured himself concerning his personal involvement in narcotics trafficking, and (2) the verdict was against the weight of the evidence.
As regards the first basis of his motion, he contends that "this is a case which hinged upon the credibility of Salvatore Gravano." Memorandum of Law in Support of Defendant's Motion for a New Trial ("Def's Mem." at 2). In furtherance of that contention, he asserts that the "heart of the defense were the claims that (a) Gravano had lied about perhaps the most crucial event in the case -- an alleged meeting with Thomas Gambino to discuss Anthony Megale's guilty plea -- and (b) that the government was covering up for him." This assertion is elaborated by alluding to the government's reference to Gravano's cooperation agreement, the continued efficacy of which was conditioned upon his truthfulness and to Gravano's testimony two weeks previously in another trial in the Southern District of New York in which, the defendant claims, Gravano lied under oath.
Prior to discussing the legal underpinnings of the defendant's motion, it would be useful to make a factual assessment of the defendant's averment that his case "hinged upon the credibility of Salvatore Gravano," that his testimony "was, as a functional matter, the sine qua non of the government's cases" and that it is "the only way to harmonize Thomas Gambino's conviction and Giuseppe Gambino's acquittal" (Def's Mem. at 3).
Prior to making that assessment, however, it is vital to note and remember that the defendant, Thomas Gambino, was indicted in December, 1990 together with Salvatore Gravano, John Gotti and Frank Locascio. The charges against the defendant in that indictment, from which he was eventually severed, are virtually identical to the charges in the superseding indictment on which he was tried and convicted. Had the defendant not been severed and had Gravano not elected to cooperate with the government, the defendant would have been tried together with Gravano and the other co-defendants.
The first significant evidentiary reference to the defendant was presented by the government in an intercepted and recorded conversation between John Gotti and George Remini on January 17, 1986 in the Bergin Hunt and Fish Club. George Gabriel, a Special Agent of the F.B.I. testified regarding that conversation. Agent Gabriel has been assigned to the Gambino Squad of the F.B.I. since 1985 and was qualified as an expert witness on organized crime families, their structure, methods, means of operation and on the terminology used by members of organized crime families. He identified John Gotti as the Boss of the Gambino Organized Crime Family (Tr. at 194), George Remini as a made member in that family (Tr. at 203), Tommy DeBrizzi as an acting captain in the Gambino Family (Tr. at 206) and Tommy Bilotti as the underboss of the Gambino Family (Tr. at 209). During the course of that conversation Gotti informed Remini that the defendant sent for DeBrizzi on three occasions and DeBrizzi never came, explaining his failure to do so by having been given discretion by Tommy Bilotti to respond or not to the defendant's summons (Tr. at 208-09). Gotti went on to say that he will have the defendant handle the problem with DeBrizzi (Tr. at 211). Of particular significance is Gotti's statement to DeBrizzi that the defendant's people, (Phil Loscalzo and the co-defendant, Giuseppe Gambino) (sometimes referred to hereafter as Joe Gambino) are helping him run DeBrizzi's operation in Connecticut (Tr. at 212) and that he would demote DeBrizzi from an acting captain to soldier and assign him to the defendant. (Tr. at 217-18). Other attributions to Gotti in the conversation as testified to by Agent Gabriel make it plain that the defendant Thomas Gambino was a captain in the Gambino Family (Tr. at 222-24), and photographs received in evidence depict persons identified as DeBrizzi (GX 902-A); Giuseppe Gambino (GX 902-B and C); George Remini, Phil Loscalzo and the defendant (GX 902-D and E); George Remini and the defendant (GX 902-F and G) and Anthony Megele (GX 902-H). (Tr. at 226-28). These photographs were taken on January 22, 1986 on Bogart Avenue in the Bronx, N.Y. (Tr. at 226-27). There are approximately four passing references to acquitted co-defendant Giuseppe Gambino on that recorded conversation compared to approximately three times as many to the defendant Thomas Gambino which are of more than passing significance.
The government also introduced an intercepted and recorded conversation in which the participants were John Gotti, Frank Locascio and Salvatore Gravano on January 4, 1990 in an apartment above the Ravenite Club at 247 Mulberry Street in New York City (Tr. at 229). Agent Gabriel explained a reference to one Pietro Angelo and Tommy Gambino as signifying that Angelo, deceased in 1985, was a member of this defendant's crew. (Tr. at 255-57, 261). As the conversation continued and the names of many others were mentioned in a variety of contexts, one Carmine Sciandra was identified as a member of Tommy Gambino's crew (Tr. at 279) and Tommy Gambino was described as laughing when Gotti admonished lawyers (Tr. at 284). Not once during the playing of this recorded conversation was the name of Giuseppe Gambino mentioned.
An intercepted and recorded conversation in an apartment above the Ravenite Club on January 17, 1990 was played. Among the participants heard on this recording were Gotti, Locascio, Gravano and Joseph ("Joe Butch") Corrao. In the course of this conversation Gotti is heard to declare that Tommy Gambino is a "skipper," meaning a captain in the Gambino Family. (Tr. at 116, 289). Not once during the playing of this recorded conversation was the name of Giuseppe Gambino mentioned.
A conversation among Gotti, Gravano and Locascio on November 30, 1989 in the apartment above the Ravenite which was intercepted and recorded was played for the jury. On that recording, Gotti is overheard relating a conversation at which Thomas Gambino was present in which accusations were voiced against Neil Dellacroce, a captain in the Gambino Family (Tr. at 307) and in which he related a stated intention of Paul Castellano to Put "young soldiers" . . . "in the crews of Tommy Gambino and Joe Butch Corrao." (Tr. at 309). Not once during the playing of this recorded conversation was the name of Giuseppe Gambino mentioned.
A conversation between Gotti and Giuseppe Gambino in the hallway of 247 Mulberry Street on December 14, 1989 was intercepted, recorded and played for the jury. The subject of the conversation was the need to provide a lawyer for Tony Megale who was indicted in Connecticut on December 6, 1989 and arrested on the following day, the expenses a trial would entail, and who would provide for payment of those expenses. (Tr. at 324-26).
Five days later, on December 19, 1989, a conversation between Gotti and Thomas Gambino in that same hallway was intercepted, recorded and played for the jury. The discussion once again centered about the representation of Tony Megale. (Tr. at 327). The testimony of Agent Gabriel regarding that conversation would have permitted the jury to find that Tommy Gambino was going to pay for the services of Tony Megale's lawyer (Tr. at 328, 332); that Tommy Gambino was involved with loansharking (Tr. at 329); that Tommy Gambino was the captain of a crew of which Giuseppe Gambino was a member (Tr. at 330); that Tommy Gambino was keeping Gotti apprised of the events surrounding the indictment of Tony Megale (Tr. at 333); that he pledged his fealty to John Gotti (Tr. at 335, 336); and that Gotti was pleased that Tommy Gambino was available to assist Tony Megale (Tr. at 336).
After the recorded conversations were played for the jury, the government then presented surveillances of the activity in the vicinity of the Ravenite Social Club which were captured on video tape. Thomas Gambino was shown entering and leaving that club on December 19, 1989 and Giuseppe Gambino was then shown on December 14 and 19, 1989.
The cross-examination of Agent Gabriel established that he was never told that Giuseppe Gambino was ever seen at any gambling operation in Connecticut, nor had he ever been told that Giuseppe Gambino was the recipient of a delivery of money in Connecticut (Tr. at 458-60); that he was involved in moneylending (Tr. at 426-32, 442-44); or that he was ever mentioned in any conversation emanating from the Connecticut gambling operation. (Tr. at 431). The cross-examination also revealed that there was no evidence that Tony Megale ever gave any money to Giuseppe Gambino (Tr. at 435); that he was never mentioned in any conversation intercepted in the home of Paul Castellano as being involved in Connecticut gambling or loansharking (Tr. at 437); there was no evidence that Giuseppe Gambino ever delivered any money to John Gotti (Tr. at 442-43); Salvatore Gravano was never overheard to say that Giuseppe Gambino delivered money to Gotti from Connecticut gambling or loansharking operations (Tr. at 444); there was no evidence that Giuseppe Gambino ever gave any money to Megale's lawyer (Tr. at 473); and he was never heard in any conversations regarding Megale's plea (Tr. 480-81).
Salvatore Gravano was the next witness called to testify for the government. He identified the defendant as a captain in the Gambino Family (Tr. at 599, 610); George Remini as his acting captain (Tr. at 612); Skinny Phil, Carmine Sciandra, Petey Castellano, Sal (LNU), Tony Megale, Giuseppe Gambino and Tommy DeBrizzi as members of the defendant's crew (Tr. at 613, 615, 641). He testified that the defendant was involved in running the Connecticut faction of the Family through Tony Megale (Tr. at 644) who he saw at the Ravenite a few times with the defendant and Giuseppe Gambino. (Tr. at 645). That faction was involved in gambling, loansharking and labor racketeering. (Tr. at 645). He never saw Megale turn in any money to any member of the Gambino family and if Megele ever did, Gravano didn't know to whom. (Tr. at 647-48). In accordance with Family protocol, each captain, including the defendant, contributed $ 3,000 as a Christmas present for John Gotti. (Tr. at 648). Gravano never received any money from Giuseppe Gambino in connection with Connecticut gambling or loansharking and did not know whether Giuseppe Gambino was involved in any way in those Connecticut activities. (Tr. at 648-49).
Cross-examination elicited from Gravano that Gotti never discussed with him the receipt of monies from Connecticut and never told him he was receiving money from Giuseppe Gambino (Tr. at 676-77, 680); that Gravano never received money from Giuseppe Gambino (Tr. at 679); that Gotti never told him that the defendant or Giuseppe Gambino was to bring in a specified weekly sum from Connecticut gambling and loansharking (Tr. at 680-81, 684-85); that neither Angelo Ruggiero nor Joe Piney ever told him (Gravano) that the defendant or Giuseppe Gambino ever delivered money to John Gotti from Connecticut Gambling and money lending. (Tr. at 682).
Counsel then embarked upon a course of a vigorous, aggressive and methodical impeachment in which virtually every crime and every wrongful act committed by the witness was minutely dissected and laid before the jury over a period of two days and approximately 150 pages of transcript. Included in that cross-examination was the fact that at a time when Gravano had previously testified he met with the defendant in New York concerning the Megale Plea, he was, in fact, on vacation in Puerto Rico. (Tr. at 838-44). The redirect and recross-examination of this witness added little of substantive value to what has been outlined above.
Joseph L. Sheridan, a Special Agent of the FBI, testified as to the significance of terms used and the identity of persons referred to during a tape-recorded conversation between William Lepore, a confidential informant who was wired, and Aurelio Carmolingo, an associate of the Gambino Family and a Connecticut loanshark. (Tr. at 897). A person identified by Agent Sheridan as Tommy DeBrizzi, in charge of the Connecticut faction of the Gambino Family, was referred to in that conversation. (Tr. at 904). Also referred to was a person identified by Agent Sheridan as Tony Megale who succeeded Tommy DeBrizzi and who was said to be affiliated with the Gambino Family in New York. (Tr. at 919). Throughout that conversation, references were made to gambling and shylocking activity of Carmolingo and others associated with the Gambino Family. There were no references to either Thomas or Giuseppe Gambino or any of the recorded conversations and Agent Sheridan testified that neither Thomas nor Giuseppe Gambino were seen during the course of surveillances. (Tr. at 941).
Michael Sairius, a retired Connecticut State Police detective, testified as an expert on gambling. He explained the meaning of gambling terms used during the course of telephone conversations between a bookmaking establishment and bettors; the mechanics of bookmaking; and the fact that Tony Megale's voice was intercepted on some of those recorded conversations. (Tr. at 1072).
That there was a relationship between Tommy DeBrizzi, Tony Megale, Frank Piccolo (DeBrizzi's predecessor in charge of the Connecticut faction of the Gambino Family) and others and John Gotti was established through the testimony of FBI Special Agents Paul Hayes, Jr., and John Schiman. (Tr. at 1073-85).
Special Agent Eugene McCarthy testified to surveilling Tony Megale on March 22, 1989 from Stamford, Connecticut, to the Cafe Cappuccino on Morris Avenue in the Bronx, to the Dynamic Delivery Corporation warehouse on West 24th Street in Manhattan. (Tr. at 1087-89). The Cafe Cappuccino was the place where Phil Loscalzo "did most of his business . . . almost on a daily basis." (Tr. at 1175). The defendant Thomas Gambino had an interest in the Dynamic Delivery Corporation. (Tr. at 1176). Cross-examination elicited that during the course of that surveillance Agent McCarthy did not see Giuseppe Gambino.
FBI Special Agent James Riordan testified that while on surveillance on November 14, 1985 he saw Thomas DeBrizzi meet with Tony Megale and Phil Loscalzo in Stamford, Connecticut and did not see Thomas Gambino or Giuseppe Gambino during the course of that surveillance. (Tr. at 1093-97).
FBI Special Agent Milo Dowling, the Case Agent for this case, testified on behalf of the government. He testified that on May 3, 1989 he followed Tony Megale from Cos Cob, Connecticut to West 35th Street in Manhattan and together with others, executed a search warrant authorizing a search of Megele and his vehicle. Agent Dowling also described the articles found on Megale's person. (Tr. at 1153-55). Agent Dowling then testified to specific dates and to events occurring on those dates which were of more than passing relevance to the government's theory of the case and to the entire mosaic of evidence with which these isolated pieces of testimony fit. For example, Thomas Gambino was observed at the Ravenite Social Club on April 17, 1990, the day on which Tony Megale pleaded guilty in the federal court in Connecticut. (Tr. at 1159). Between April 17 and April 21, 1990 (the date on which John Gotti, Jr. was married), there were no observations of Thomas Gambino at the Ravenite. He was next observed there on April 24 and again on April 26 and 27. (Tr. at 1160-61). This was the only week in three years of video surveillance in which Thomas Gambino was seen at the Ravenite on three separate days. (Tr. at 1168). Tony Megale had moved to withdraw his plea on April 25 and his motion was denied on April 30. (Tr. at 1161). The particular significance of the foregoing is that Gravano had previously testified that he met with Gotti and Thomas Gambino regarding the Megale plea at the Ravenite on April 18 which was questionable given the absence of an observation of Thomas Gambino at the Ravenite between April 17 and April 21. Agent Dowling became aware of the discrepancy while compiling a summary chart based upon videotaped surveillance depicting persons seen at the Ravenite on given dates. (Tr. at 1163). He never called the discrepancy to the attention of Gravano and to his knowledge, Gravano himself first became aware of the discrepancy when confronted with it upon cross-examination by the defendant's counsel. (Tr. at 1164). It is also particularly significant to note that the summary chart from which the discrepancy became apparent was provided to the defense approximately one week prior to the commencement of the trial. (Tr. at 1163).
Another summary chart reflecting telephone records of Anthony Megale for the years 1985-1990 was received in evidence. (Tr. 172-73). Agent Dowling testified that those records revealed a number of calls to the residence of Giuseppe Gambino; to and from the Romeo Cafe in the Bronx where Giuseppe Gambino was frequently found; to the residence of Phil Loscalzo; to and from the Cafe Cappucino in the Bronx where Loscalzo was frequently found; to Consolidated Carriers on West 35th Street in Manhattan, a company in which Thomas Gambino has an interest (Tr. at 1173-76, 1181); calls billed to Megale's home from a grocery store three doors removed from the Ravenite Social Club on days when Megale was also observed at that club (Tr. at 1179-80); calls from Bridgeport, Connecticut to the office of Paul Victor, Megale's lawyer in New York City and to Consolidated Carriers on April 23, 1990, the day on which the transcript of Megale's guilty plea was filed (Tr. at 1182-84); calls from Stamford, Connecticut to Paul Victor and to Consolidated Carriers on April 30, 1990, the day on which Megale's motion to withdraw his plea was filed.
Videotaped surveillances of the Ravenite Club were received in evidence and played. Agent Dowling identified the persons captured on those videotapes. (Tr. 1189-1213). Reference will be made to a selected few of the events depicted. On October 27, 1988 the defendant and Gravano leave the Ravenite and engage in conversation for approximately thirty-five minutes. (Tr. at 1192). On the day Tony Megale pleaded guilty, Thomas Gambino arrived at the Ravenite and was seen later on leaving with John Gotti and others. (Tr. at 1203). On April 24, 1990, the day before Megale filed his motion to withdraw his plea, Thomas Gambino and Gravano enter the Ravenite and thereafter Gambino is seen leaving with John Gotti. (Tr. at 1205). On April 26, 1990, the day after the motion to withdraw the plea is filed, Thomas Gambino, Gotti and Gravano are again captured in a walk-talk. On May 3, 1990, after Megale's motion to withdraw his plea was denied, Thomas Gambino and John Gotti are shown again walking and talking. Shortly thereafter, Thomas Gambino is again walking and talking with one Vinnie Aloi, described as a member of the Colombo Organized Crime Family. Giuseppe Gambino is also at the Ravenite on that day conversing with Thomas Gambino and Frank Locascio outside the Ravenite Club. (Tr. at 1210-11). On May 10, 1990, the videotape depicts Giuseppe Gambino and Tony Megale entering and exiting the Ravenite Club and on May 14, Thomas Gambino is shown exiting the Club with John Gotti. (Tr. at 1212).
Counsel for Thomas Gambino cross-examined Agent Dowling about the inconsistency concerning the date on which Gravano showed Thomas Gambino a newspaper article reporting the guilty plea of Tony Megale and discussing that plea with him. (Tr. at 1218-24, 1265-66). Cross-examination also elicited that Tony Megale was at the Ravenite Club on many occasions when Thomas Gambino was not observed there. (Tr. 1228-34). Cross-examination also elicited the many phone calls Tony Megale made from his cousin's restaurant located a few blocks from the Ravenite Club. (Tr. at 1251-58). Agent Dowling testified, in response to questions put to him on cross-examination, that he did not have a recorded conversation in which Tommy Gambino was discussing Connecticut gambling with Tony Megale or in which he is heard directing Megale to come to New York. (Tr. at 1262).
Agent Dowling was cross-examined vigorously, as well, by counsel for Giuseppe Gambino concerning the date of the discussion between Gravano and Thomas Gambino about the newspaper article reporting the guilty plea of Tony Megale. (Tr. at 1267-77). That cross-examination elicited that Agent Dowling had no knowledge that Giuseppe Gambino was present in the Romeo Cafe on the occasions when Agent Dowling testified telephone calls were made from that Cafe to Tony Megale (Tr. at 1283), nor did Agent Dowling know whether the telephone calls from Tony Megale's telephone to Giuseppe Gambino's telephone were between Mrs. Megale and Mrs. Gambino. (Tr. at 1282). Agent Dowling never saw Tony Megale deliver anything to Giuseppe Gambino nor did he ever see Giuseppe Gambino deliver anything to Salvatore Gravano. (Tr. at 1285).
This detailed account, assessed objectively, belies the dogmatic assertion that the case stood or fell upon the credibility of Salvatore Gravano and that it was his credibility which alone accounted for the defendant's conviction and his codefendant's acquittal. Gravano's direct testimony explicitly linking the defendant to the Connecticut faction of the Gambino Family was only as follows:
Q. After DeBrizzi was killed, who took over management of the Connecticut faction?
A. When Tommy Gambino was involved in running the Connecticut faction, there was Tony Megale who basically took direct control of it in answer to Tommy Gambino.
Beyond that, Gravano's only testimony linking the defendant to the Connecticut faction is reflected in this snippet of direct and re-direct testimony:
Q. Did Tony Megale subsequently plead guilty?
Q. What happened as a result of Tony Megale's plea?
A. It was in the papers that he admitted being a made member, that he was controlling the Gambino interest in Connecticut.
Q. That Thomas Gambino would make Tony Megale withdraw the plea?
A. He tried to withdraw the plea.
Q. For several years prior to Tony Megale, Tommy Gambino was also responsible for the operation in Connecticut, is that fair to say?
As has been previously outlined, that recounted event was the subject of much inquiry which established that it did not occur on the date testified to by Gravano, but, nevertheless permitted the jury to find that he was mistaken as to the date but not as to the occurrence. (Tr. at 1290-91). Gravano's direct testimony pertaining to Joe Gambino in this connection is reflected in the transcript as follows:
Q. Do you know whether or not he [Joe Gambino] was involved in any way in the Connecticut gambling and loansharking operation?
(Tr. at 648-49) (emphasis added).
A plain reading of the few lines can only be understood as conveying that Salvatore Gravano did not know whether Joe Gambino was or was not involved in Connecticut gambling and loansharking.
Those few lines from a transcript of approximately 1700 pages represent the direct testimony of Gravano linking the defendant to the Connecticut faction of the Gambino Family. He disclaimed any knowledge of any of the details of that linkage as his cross-examination made clear and as is reflected in the following salient portions:
Q. Did John Gotti ever send a message to you and say to you, you know, Sammy, Joe Gambino is someone who is supposed to bring down $ 1600 a week from Connecticut gambling and money lending? Never said that in any message to you, correct?
Q. And he never said that to you in any message with respect to Tom Gambino?
A. As far as Connecticut gambling?
Q. That's what we are talking about, Connecticut gambling, Connecticut money lending, do you understand that, that's the only thing I'm asking you about.
Did John Gotti ever say to you, by way of any message sent from the prison while you ran the family, that Tom Gambino was to bring down $ 1600 a week from Connecticut gambling and money lending?
Q. If I got it, then I say to you, sir, during the period of time that you ran this family, the man in charge, am I correct, when I say neither John Gotti nor any single person ever said to you that Joe Gambino or Tom Gambino was responsible, was assigned the responsibility of bringing money from Connecticut gambling and Connecticut money lending, correct, Mr. Gravano?
Q. So, I am correct, am I not, that no one ever said that to you, the man in charge, whether it be Gotti or any other of these -- I think it's been described as 250 made people and a thousand associates, so 1250 people plus Mr. Gotti, that's 1251 people, no one ever said that to you?
A. I don't talk to 1251 ...