statement that it recounts) until we received Mr. Burstein's letter." Her affidavit goes on to recite facts pertaining to that wiretap application and the extent of the knowledge her office had. Her subsequent affidavit, dated October 25, 1993, provides even greater detail in that regard.
On October 19, 1993 another letter was received from Michael Rosen, counsel for the defendant, to which were attached three affidavits dated May 5, 1989 and June 8, 1989, respectively: one by Kings County Assistant District Attorney Brian Mich; one by Detective Matthew O'Brien assigned to the Kings County District Attorney's Squad; and one by Kings County Assistant District Attorney Lynn S. Olinger, all in support of an Eavesdropping Warrant requested to be issued by a Justice of the Supreme Court of the State of New York authorizing the interception of communications at the Stillwell Avenue premises. Once again, the defendant urges a Brady violation by the government, citing Giglio, Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), and Wedra v. Thomas, 671 F.2d 713 (2d Cir.), cert. denied, 458 U.S. 1109, 73 L. Ed. 2d 1372, 102 S. Ct. 3491 (1982).
On October 25, 1993, counsel for the defendant orally requested an "emergency" meeting with the court. A telephone conference was held shortly thereafter in which the government and defense counsel participated. Immediately prior to that conference, the court was furnished with a copy of an Affirmation in Opposition to a Motion to Bar Retrial, submitted by James B. Comey, a Special Assistant United States Attorney for the Southern District of New York. Various exhibits referred to in that affirmation were not attached and therefore not before the court. The Affirmation was in opposition to a motion made by the defendants in United States v. Gambino, et al., (9S) 88-CR-919 (PKL) in the Southern District of New York. The defendants in that case base their motion on the claim that the Southern District withheld information contained in a letter proffered by the government in the Eastern District in the unrelated case of United States v. Conte (CR-93-0085) (ILG) pertaining to the bail status of Conte. The bulk of that affirmation addresses communications between the offices of the United States Attorney for the Southern and Eastern Districts of New York; whether the information exchanged between those offices did or did not make manifest Gravano's discussions with Conte about heroin trafficking and therefore, Gravano's involvement with it; whether the Southern District knew or should have known of that involvement; and whether certain information was or was not Brady material.
The letters of October 6th and 19th will be addressed first. Each is predicated upon the assertion that knowledge of one agent of the Federal Bureau of Investigation working with Assistant District Attorneys of Kings County on another investigation four years ago and knowledge of those Assistant District Attorneys reflected in wiretap applications to a state judge should be imputed to the Assistant United States Attorneys in this case. That assertion is not persuasive. The three cases upon which the defendant relies will be examined briefly. United States v. Giglio, supra, involved a promise of leniency made to the key government witness by one Assistant United States Attorney which was not known to another in the same office. The Court held that the "promise made by one attorney must be attributed, for these purposes, to the Government. 405 U.S. at 154 (emphasis added.)
Santobello involved a plea agreement made by one prosecutor which was specifically enforceable against another. In that context, the Court wrote "the staff lawyers in a prosecutor's office have the burden of 'letting the left hand know what the right hand is doing' or has done." Santobello, 404 U.S. at 262 (emphasis added).
Wedra is inapposite.
To apply Giglio to impute the knowledge of an FBI agent and state district attorney to the federal prosecutors in an unrelated case four years later "would appear to stretch the doctrine too far." See United States v. Rosner, 516 F.2d 269, 278-79 n.4 (2d Cir. 1975), cert. denied, 427 U.S. 911, 49 L. Ed. 2d 1203, 96 S. Ct. 3198 (1976). That imputation presupposes a monolithic view of government which, if adopted, would condemn the prosecution of criminal cases to a state of paralysis. It is undoubtedly accurate to say that investigations of the members and associates of the Gambino Organized Crime Family by many federal and state law enforcement agencies have produced countless hours of surveillance logs and countless hours of video tapes and audio cassettes. Indeed, in the letter of October 6, 1993 previously referred to, defense counsel states his "understanding that the Stillwell Avenue surveillance alone consists of 858 cassettes." In the letter of October 19, 1993 defense counsel writes, "there are still at least 800 tapes to be reviewed to see whether additional Brady material was captured and withheld." Those number estimates pertain to the surveillance of just one location.
To require the prosecutor to listen to every audio cassette, view every video tape and examine every surveillance log of the Gambino Organized Crime Family whenever and by whoever conducted to uncover the possible existence of Brady material is neither good logic nor good law and could not have been intended by Giglio. The untenability of that contention was most forcefully and convincingly conveyed in United States v. Quinn, as follows:
. . . Appellants take the completely untenable position that "knowledge of any part of the government is equivalent to knowledge on the part of this prosecutor" and that "he [the New York prosecutor] must be deemed to have had constructive knowledge of this evidence." . . . The Department of Justice alone has thousands of employees in the fifty States of the Union. Add to these many more thousands of employees of "any part of the government." Appellants' argument can be disposed of on a "reductio ad absurdum" basis.