The opinion of the court was delivered by: LEONARD D. WEXLER
Defendant John Barberio ("Barberio") was convicted in the United States District Court for the Eastern District of New York of offenses related to his participation in a federal gasoline excise tax evasion scheme. Defendant appealed to the Second Circuit and one of the issues on appeal was whether defendant was afforded ineffective assistance of trial counsel. The Second Circuit Court of Appeals affirmed in part and remanded on the issue of ineffective counsel. United States v. Tarricone, 996 F.2d 1414 (2d Cir. 1993). After a hearing, the District Court found that counsel was competent. Defendant took a second appeal. The Second Circuit affirmed that decision. However, at this second appeal, defendant raised for the first time an issue of prosecutorial misconduct. Accordingly, the Second Circuit remanded the case to the District Court once again to determine whether the prosecution engaged in misconduct. On July 27 and 28, 1994, this Court held a hearing on the issue. Based on the matters presented at the hearings and based on the trial record, the Court makes the following findings of fact:
1. The government possessed an analysis of the handwriting on the front page of the Beck Equities Throughput Agreement
as of September 1989 prepared by Lawrence DeVries ("DeVries"), an IRS expert. DeVries concluded that the handprinting and numerals were authored by Anthony Marrale ("Marrale").
2. The government had reason to doubt the validity of DeVries' analysis. DeVries analyzed the handwriting of Eugene Montesi ("Montesi") and concluded that "there is no evidence to indicate Montesi authored any of the entries in question." Montesi, however, later admitted to authoring some of the entries. Additionally, Montesi testified that Anthony Marrale used the alias "Herb Kane" and signed agreements as such. Despite analyzing those entries, DeVries did not identify the Kane signatures as having been authorized by Marrale.
3. Although the language "there is no evidence" in DeVries' report is ambiguous and subject to misinterpretation, the government concluded that the phrase meant that the exemplars were not authored by Montesi.
4. In his December 1991 Grand Jury testimony, Marrale never identified the handwriting on the first page of the Throughput Agreement, but admitted only that the signature "Herb Kane" on the last page "could have been" his. Additionally, the government suspected that Marrale committed perjury during his 1988 Grand Jury appearance.
5. In his December 1991 Grand Jury appearance, Louis Capossela ("Capossela") provided immunized testimony in which he identified the writing on the first page of the Throughput Agreement as Barberio's. Joanne DeVito ("DeVito") independently corroborated Capossela's testimony that it was Barberio's writing on the front page of the Throughput Agreement.
6. As a secretary in the Shoreline office, DeVito was familiar with Barberio's handwriting. Neither Capossela nor DeVito was aware of the IRS expert's handwriting report that identified the writing as Marrale's. The government deemed it unnecessary to contact the IRS expert to confirm the handwriting report in light of the DeVito/Capossela testimony.
7. By December 2, 1991 the government had decided to reject the IRS handwriting report.
8. The prosecution fully disclosed the existence of the expert's report indicating that the writing on the Throughput Agreement was Marrale's and not Barberio's.
9. Through counsel, Barberio denied and continues to deny that it is his handwriting on the Throughput Agreement.
10. Barberio, through counsel, made no attempt to show that the Capossela or DeVito testimony was perjured. This Court now finds that said testimony was ...