where the evidence is material either to guilt or punishment." Id. at 87. As a threshold matter, the defendant must show that the Government actually suppressed evidence.
The prosecutor's duty to disclose information necessarily extends only to "information which had been known by the prosecutor but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). Accordingly, the Government is not required to disclose evidence it does not possess or of which it is unaware. Morgan v. Salamack, 735 F.2d 354, 358 (2d Cir. 1984). See United States v. Locascio, 6 F.3d 924, 949, 1993 U.S. App. LEXIS 26472 (2d Cir. Oct. 1993) (where the information was neither known to the prosecutorial team nor exculpatory in nature, no Brady violation occurred);
United States v. Tillem, 906 F.2d 814, 824 (2d Cir. 1990) (prosecutor did not violate Brady requirements by failing to reveal that lead witness was receiving psychiatric counseling, where prosecution was not aware the witness was receiving treatment).
Upon a through review of the submitted documentation, this Court concludes that the Southern District was unaware of the Conte-Gravano heroin scheme prior to May 18, 1993. James Comey, the former lead Government Attorney for the trial of this case, states in his affidavit to this Court, that upon review of prior testimony of Gravano, there was no reference to the Conte-Gravano heroin scheme. Affidavit of James Comey, Esq., dated October 21, 1993 ("Comey Affidavit") at P 11. Comey also states that in meetings with the Eastern District, the issue of such a scheme never arose or was otherwise addressed. In fact, Conte's name was mentioned only rarely, so much so that only one AUSA remembered the name being mentioned. Id. at P 6. Furthermore, a review of writings between the Southern and Eastern Districts did not reveal any information about the Scheme.
Upon learning of the Scheme on May 18, 1993, Comey attempted to discover what was known throughout the Southern District regarding the Scheme. On May 25, 1993 Comey wrote a letter to this Court and subsequently, through oral presentation, informed this Court that, prior to May 18, 1993, the date of the aforementioned newspaper article, the Southern District was unaware of the Scheme. Consequently, upon finding that the Southern District was unaware of the Scheme, this Court finds that there was not a Brady violation in this case.
Moreover, the defendants have failed to make a showing that there was a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. Tinsley v. Kuhlmann, 973 F.2d 163 (2d Cir. 1992) cert. denied, 122 L. Ed. 2d 358, 113 S. Ct. 1050 (1993) (citing United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985)); see, e.g., Locascio, slip op. at 6522 (finding where Government witness has admitted to 19 murders when he had actually committed 22 or 23, the jury's knowledge of the additionally murders would have had no effect on the witness' credibility because it would merely have been cumulative, and "the addition of a few more allegations would not have materially affected the defense's cross examination of him"); United States v. Helmsley, 985 F.2d 1202, 1205-06 (2d Cir. 1993) (finding that based on the substantial attack on the witness's credibility which had already been developed at trial, "the withheld evidence failed to create a reasonable doubt [about the witnesses credibility] that did not otherwise exist"). Here, as in Locascio, the jury was well aware that Gravano had committed numerous crimes, among them murder. There has been no showing that the hearing of additional crimes, i.e., a heroin trafficking scheme, would have caused the jury to reach a different result.
B. Southern District's Knowledge of Exculpatory Evidence
Defendants also claim that the Southern District was in possession of exculpatory materials which it did not disclose, namely that Gravano had discussed drug deals with a number of "captains" in the Gambino crime family, but had no such conversations with John Gambino. Even if the Southern District had knowledge that Gravano had conversations with other captains about specific instances of drug crimes, the fact that Gravano did not have such conversations with Gambino does not make such evidence exculpatory. The defendants base their argument in part on a statement by AUSA John Gleeson of the Eastern District that Gravano's testimony to this effect may have tended in part to exculpate John Gambino, and "was probably Brady material." See Gleeson Affidavit, attached as Government's Exhibit C ("Gleeson Affidavit") at P 6.
This Court finds that such testimony by Gravano, discussing possible instances of innocent behavior by Gambino is not necessarily exculpatory. The Second Circuit has held that "a defendant may not seek to establish his innocence . . . through proof of the absence of criminal acts on specific occasions." United States v. Scarpa, 913 F.2d 993, 1011 (2d Cir. 1990) (citing United States v. O'Connor, 580 F.2d 38, 43 (2d Cir. 1978)). In Scarpa, the Second Circuit held that surveillance tapes that would reveal the absence of discussion of narcotics crimes, did not have to be disclosed. Scarpa, 913 F.2d at 1011. See United States v. Benedetto, 571 F.2d 1246, 1250 (2d Cir. 1978) (holding that employees charged with receiving illegal payments may not seek to prove their innocence by demonstrating that on other occasions they did not act improperly). Since a defendant cannot introduce evidence of innocent behavior on other occasions to prove his innocence, such testimony would not be exculpatory within the requirements of Brady.
Furthermore, the mere fact that Gravano had conversations with other members of the organization about narcotics trafficking and did not have such conversations with Gambino would not necessarily prove to be exculpatory. This is particularly true in light of the fact that the bulk of evidence regarding drug trafficking was provided by other witnesses.
For the above stated reasons, this Court finds that the Southern District did not withhold Brady material and accordingly finds no acts of misconduct to be present. Having failed to satisfy both prongs delineated in Pavloyianis, the defendants motion to bar a retrial hereby is denied.
IV. Dismissal of Charges
Having found that the standards for establishing a double jeopardy claim based on prosecutorial misconduct have not been met, this Court declines the defendants' invitation to dismiss the charges by exercising its supervisory powers.
V. Other Relief Requested
The defendants have moved for additional relief in the form of the production of additional information relating to the issues discussed above.
First, the defendants request additional information related to the "Conte proffer". Based on the findings of this Court set forth above, the defendants' request is denied.
Second, the Defendant's have requested that this Court require AUSA Gleeson to identify all the Southern District prosecutors to which he imparted the information contained in his affidavit. Based on the conclusions reached above and the unnecessarily broad reaching nature of this request, the defendants' request to this effect is denied.
Third, the defendants have requested a hearing in this matter. The Second Circuit has held that no rule of law requires a hearing in the sort of case where the relevant fact can be ascertained from the record. See Pavloyianis, 996 F.2d at 1475. Here, as in Pavloyianis, this Court has presided over all the proceedings, reviewed all the affidavits, and "concluded that there was 'not the slightest indication or evidence that the trial prosecutor anticipated an acquittal.'" Id. at 1475. Accordingly, the defendants request for a hearing is denied.
Fourth, the defendants have requested the production of a copy of the letter [memorandum] of July 1992, cited by Mr. Gleeson along with all other communications between the Eastern District and the Southern District prior to June 4, 1993 regarding this matter. The Government has indicated that there is an internal Eastern District memorandum relating to these matters, and a corresponding response from the Southern District. This Court is mindful of the importance of the confidentiality of attorney work product. See Fed. R. Crim. P. 16; Fed. R. Crim. P. 6(e). See e.g., United States v. Nobles, 422 U.S. 225, 238-39, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975) (applying confidentiality of attorney work product to criminal matters); In the Matter of Grand Jury Subpoenas, 959 F.2d 1158, 1166 (2d Cir. 1992) ("disclosure of protected material will be compelled only in restricted circumstances."). This Court has concluded that there was neither prosecutorial misconduct, nor a belief by the prosecution that acquittal was likely. Either one of these two findings alone would suffice to deny the defendants' motion. Accordingly, the requisite circumstances for disclosure of confidential attorney work product containing confidential grand jury material have not been demonstrated, and therefore, this Court sees no need to require the production of additional memoranda from the Southern and Eastern Districts.
For the above stated reasons the defendants' motion is denied in its entirety.
Dated: November 12, 1993
New York, New York
Peter K. Leisure