The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, Senior District Judge:
3. Testimony Identifying Orena as Acting Boss
6. Testimony of Special Agent DeVecchio
7. Testimony of Special Agent Favo
4. Testimony of Special Agent Favo
D. Gregory Scarpa and R. Lindley DeVecchio
1. Scarpa's Criminal Activity
2. Scarpa: Confidential F.B.I. Informant
3. Scarpa-DeVecchio Relationship
4. Suspicions of DeVecchio's Misconduct
5. Post-Trials: DeVecchio-Scarpa Details
6. Defendants' Claims of Suppression
C. Newly Discovered Evidence Claims
IV APPLICATION OF LAW TO FACTS
A. Inferences from DeVecchio's Asertion of Privilege
2. Defendants' Materiality Arguments
3. Suppressed Evidence Not Material
a. Defense Theories Not Supported By Suppressed Evidence
b. Assessment of Materiality Must Be Time-Sensitive
c. Evidence Not Material for Purposes of Impeachment
C. Newly Discovered Evidence Claims
3. Claims Unrelated to Scarpa-DeVecchio Material
These are disturbing cases. On the facts and the law, a decision for either side might be justified. After extended evidentiary hearings, briefings, argument and introspection, the court concludes that the defendants must be denied new trials.
Defendants were proven by strong evidence to be murderous criminals. The jury found them guilty in separate trials -- Orena in 1992 and Amato in 1993. Their offenses were committed while they were conducting the affairs, and later warring over control, of the Colombo organized crime family. Both were sentenced to life in prison and stripped of their worldly goods. The Court of Appeals affirmed. United States v. Sessa, 821 F. Supp. 870 (E.D.N.Y.1993), affirmed sub nom, United States v. Amato, 15 F.3d 230 (2d. Cir. 1994)and United States v. Orena, 32 F.3d 704 (2d Cir. 1994).
Attempting to transform a troubling cloud of questionable ethics and judgment enveloping an F.B.I. Special Agent into a raging storm of reasonable doubt, petitioner-defendants move for dismissal of their indictments or for new trials pursuant to Rule 33 of the Federal Rules of Criminal Procedure and section 2255 of Title 28 of the United States Code. The claim is that the government violated its disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995), after engaging in and covering up outrageous government misconduct.
Scarpa has died in prison and can provide no help on the facts. DeVecchio, having been allowed to resign from the F.B.I. without explaining what happened, pleaded his Fifth Amendment privilege. While he remained silent in court at the earlier hearings and throughout his interminably delayed administrative and professional responsibility proceedings, he spoke freely to the media, apparently uninhibited by fear of cross-examination under oath. See, e.g., Frederic Dannen, The G-Man and the Hit Man, The New Yorker, Dec. 16, 1996, at 68. Finally, when the court indicated it would draw inferences adverse to the government from DeVecchio's silence, see infra section IV(A), he was granted immunity, all documents relevant to his background were revealed, and he was subjected to fierce examination by defense counsel.
Despite the seamy aspects of law enforcement revealed by the record, for the reasons indicated below, defendants' factual assumptions and legal theories are unpersuasive. Their motions must be denied and their petitions dismissed.
The Colombo Family is one of metropolitan New York's five major organized criminal groups that together constitute our local Mafia. Others are the Bonnano, Gambino, Genovese, and Lucchese Families. For a description of the role and history of these mobs in New York City see, e.g., United States v. Sessa, 821 F. Supp. 870, 871-73 (E.D.N.Y.1993), affirmed, United States v. Orena, 32 F.3d 704(2d Cir. 1994).
With the exception of the Ocera murder, charges in the two instant cases arose primarily out of incidents connected to a deadly struggle for power between two Colombo factions -- the Persicos and the Orenas -- that began in the autumn of 1991 and lasted through the spring of 1992. The "Colombo War" left ten people dead and another fourteen wounded.
Over the course of this fratricidal blood-letting the F.B.I., with the aid of the New York City Police Department, made 123 arrests of Colombo Family members. By September 1992, twenty-four of the fifty-four arrested were Persicos. All told, by War's end, sixty-one of those arrested were on the Orena side; sixty were on the Persico side, which was one-third the size of its rival faction.
In an effort to slow what was proving to be a particularly bloody struggle, the F.B.I. focused on stopping hit teams before they engaged in shooting. See United States v. Scopo, 19 F.3d 777, 779 (2d Cir. 1994). As a result, thirty-five of the first thirty-seven arrests were for possession of firearms. All told, over 100 guns were seized during the course of the fray. Safehouses on both sides were surveilled and searched. Bugs and videotapes were installed in cars and elsewhere to gather evidence. A video-surveillance device and a bug were even installed at the United States prison facility at Lompoc, California to eavesdrop on jailed Colombo Boss Carmine Persico's strategizing. Special Agent DeVecchio, supervisor of an F.B.I. squad charged with investigating and surveilling the Colombos, oversaw and approved many of the F.B.I.'s activities investigating and hindering the warfare.
Similarly, on March 26, 1992, upon discovering that Persico captain Michael Sessa's hit team had surveilled Orena soldier Louis "Bo Bo" Malpeso and was preparing to assassinate him, the F.B.I. alerted for dispatch to the scene New York City Police Department officers. Sessa's hit men, upon detecting the police presence, aborted their attack. On another occasion, after having installed a listening device in the car of Persico associate Joseph Ambrosino, the F.B.I. learned of Ambrosino's plan to murder an Orena captain. In order to thwart that scheme, the F.B.I. insisted upon the arrest of Ambrosino and his hit team, and, as a consequence, sacrificed the valuable electronic surveillance source inside Ambrosino's car.
To date, the United States Attorney's Office, with the critical assistance of the F.B.I. and the New York City Police Department has prosecuted seventy-five Colombo Family members. Forty of those prosecuted were Persicos, and the rest Orenas. These figures do not include New York state's prosecutions of Colombo Family members.
A brilliant and dedicated prosecutorial staff clashed with a scintillating group of defense lawyers in a tenacious struggle over many years, involving many of this courts' judges in difficult litigations. In addition to taking many vicious criminals off the streets by incapacitating them in prison, curtailing this urban guerilla strife undoubtedly saved many innocents from stray bullets.
On December 21, 1992, after a month-long trial, a jury found Orena guilty of violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c), (d); conspiracy to murder Colombo associate Thomas Ocera, 18 U.S.C. § 1959(a)(5); the murder of Ocera, 18 U.S.C. §§ 1959(a)(1) and (2); conspiracy to murder opposing members of the Colombo Family, 18 U.S.C. § 1959(a)(5); conspiracy to make extortionate extensions and collections of credit, 18 U.S.C. §§ 892, 894; use and carrying of a firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1); and unlawful possession of firearms by a convicted felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The government provided compelling and voluminous proof of Orena's guilt. Evidence was presented from a broad range of sources. The government called to the stand over a dozen witnesses, seven of whom were Orena's colleagues in organized crime who had decided to cooperate. This latter group included Michael Maffatore, Harry Bonfiglio, Joseph "Joey Brains" Ambrosino, Kenneth Geller and Alan Quattrache -- four associates and a soldier in the Colombo Family. Alphonse D'Arco, former Acting Boss of the Lucchese Family, and Salvatore "Sammy Bull" Gravano, former Underboss of the Gambino family, testified at length. Both had dealt directly with Orena. F.B.I. Special Agent DeVecchio, a supervisor responsible for investigating the Colombo and Bonnano Families, was an expert witness. See infra section II(B)(6).
A wiretap from a "roving bug" placed in the car used by Orena and his associates revealed the defendant in all his thuggish traits. The recordings -- the "Audino car tapes" -- pertained principally to the racketeering and murder charges. Supporting portions of tapes from the Quattrache home and the Ambrosino car were also admitted.
Numerous firearms and other physical evidence -- ammunition, beepers, counter-surveillance equipment, large amounts of cash, and illegally-obtained telephone toll records -- were introduced. Most of it had been obtained through a series of searches culminating in the April 1, 1992 search of the residence of Orena's girlfriend, where he was staying at the time of his arrest. Much of this physical evidence was introduced during the testimony of F.B.I. Special Agent Chris Favo. See infra section II(B)(7).
3. Testimony Identifying Orena as Acting Boss
In May 1988, about two years after Colombo Family Boss Carmine Persico was incarcerated and after a committee appointed to govern in his absence proved unworkable, Persico, from his jail cell, appointed Orena Acting Boss. Testimony of a number of the witnesses confirmed Orena's high-ranking criminal status. Gravano, the Gambino Underboss, was present at the meeting of the Commission -- the Mafia leadership circle comprised of representatives of each New York crime family -- at which Orena was unanimously approved as the official Acting Boss. D'Arco, the Lucchese Acting Boss, testified that Orena told him that he had the power to "make members or kill guys" unless explicitly instructed otherwise by Persico -- authority that only could be vested in a Boss or Acting Boss.
Ambrosino, Bonfiglio, and Quattrache also identified Orena as Acting Boss. Quattrache, a "made member" of the Colombo Family, testified that he was formally inducted in a 1988 ceremony presided over by Orena. Bonfiglio referred to Orena in court as the "boss."
Additionally, the tapes of conversations in the car of Joseph "Chubby" Audino, a close associate of Orena, identified Orena as Acting Boss. For example, one recording established that members of the opposing faction tried to kill Orena rather than ask him to "step down."
A central event in the government case was the 1989 murder of Colombo associate, Tommy Ocera. The government's theory was that Orena, as Acting Boss, directed subordinates to murder Ocera. One of these subordinates was Scarpa, who would, two years later find himself opposed to Orena in the Colombo War. In the early fall of 1989, Ocera and his girlfriend were stalked at Orena's direction. On November 13, 1989 in the Merrick, Long Island home of defendant Amato, Ocera was murdered. Ocera "disappeared" into a shallow grave on Orena's order.
Testimony at Orena's trial established his role in the Ocera killing. Orena had a number of motives to kill Ocera. Gravano testified that one was to please John Gotti, the Gambino Family Boss. Other circumstances bore this out. At the time, it was believed in mob circles that Ocera had murdered Greg Reiter, the son of a close associate of Gotti, and that Gotti had been "ripping mad" at Ocera after Reiter's murder. Gravano was present one day when Orena paid a visit to Gotti at the Gambino Boss' headquarters, the Ravenite Social Club. Gravano had observed that, prior to Orena's arrival, Gotti seemed agitated. After Orena arrived and conversed privately with Gotti, Gotti appeared calmer. Gotti later reported to Gravano that "they whacked that Tommy Ocera."
D'Arco's testimony corroborated Gravano's as to this motive. At a December 1989 dinner for Colombo and Lucchese Family leaders, Orena boasted to D'Arco that he had had Ocera "whacked," as a favor to Gotti because Ocera had killed Reiter.
Another motive may have been to punish Ocera for skimming money from Orena's money lending business. This would communicate to others what would happen to them if they did the same.
Orena's primary motive, however, was to silence Ocera after he put Orena in jeopardy with law enforcement. On October 5, 1989, the Suffolk County police executed a search warrant at the Ocera-operated Manor Restaurant in Merrick, New York. The search resulted in the seizure of Ocera's loansharking records. Orena had been using the Manor on Monday nights as a regular meeting place, and the seized records implicated Orena.
Later that month, Montesano and Ocera were followed as they left the Manor. As was their custom after closing, Montesano was taking home that night's proceeds and Ocera intended to follow her to make sure she arrived safely. Departing the restaurant, Montesano noticed two cars without license plates parked at the railway station across from the Manor. Ocera watched her enter her car and leave. Later, when Montesano approached her house, one of the cars she had noticed earlier appeared and veered directly at her, head-on. She managed to avoid a collision, and the car disappeared. Montesano was able to make out the profile of one of the drivers, testifying that it might have resembled Gregory Scarpa. The following night, Orena appeared at the Manor and told her that he heard she was a good driver and that she had "done a great job the night before."
A number of weeks later, in mid-November, Ocera was murdered. Testimony directly linked Orena to the crime. Bonfiglio testified that Gioachino "Jack" Leale, a Colombo soldier in Amato's crew, told him that Orena ordered Ocera murdered. Maffatore and Bonfiglio had driven Leale to a meeting with Orena outside of Orena's club in Cedarhurst, New York. Remaining in the car, they observed Leale and Orena go on a "walk-talk" -- Mafia parlance for a conversation held while walking outdoors in order to avoid audio-surveillance. When Orena and Leale approached the car, Bonfiglio overheard Orena tell Leale that he wanted "this thing taken care of." At first, Bonfiglio did not understand the reference, but Leale later told Maffatore and Bonfiglio that Orena had given him a contract to "whack" Ocera -- i.e., to murder him. Leale's participation in the murder did not go unrewarded. The next day -- November 14, 1989 -- Leale was "given" Ocera's two gambling clubs, in keeping with mafia practice. After a "made-member" of a family dies, his criminal enterprises revert to the family for redistribution.
Slightly less than two years after the killing, Maffatore agreed to cooperate with the F.B.I. Although he did not participate directly in the murder, he admitted that he and Bonfiglio dug Ocera's grave on the night of November 13, 1989. Using directions provided by Maffatore, F.B.I. agents found and exhumed Ocera's body in Forest Park, Queens. The metal wire described by Orena's underlings as having been used to strangle the loanshark was still around his neck. The method of killing and disappearance of the body so the victim and his mourners would be denied the dignity of a funeral and formal burial (and the widow, life insurance proceeds) was one chosen by Acting Boss Orena. Arrest warrants were issued for Bonfiglio, Leale, and two other participants in the burial. Leale was not apprehended. Four weeks later, he was found dead in a Long Island hotel parking lot.
Maffatore's and Bonfiglio's testimony linking Orena to Ocera's murder was substantially buttressed by other evidence. For example, as already noted, D'Arco testified that at the December 1989 dinner meeting of the Colombo and Lucchese Family leadership, Orena admitted to D'Arco that he had ordered the murder. Orena bragged that "we whacked Tommy Ocera. We gave him a luparo bianco," meaning that they made his body disappear.
As to the counts relating to the Colombo War, the central proposition in the government's theory was that two years after the Ocera murder Orena and his minions initiated and prosecuted an internal struggle within the Colombo Family in order to gain complete control. Orena sought to wrest dominion from the jailed Persico and his son and heir apparent, Alphonse "Allie Boy" Persico.
Evidence from a number of sources established Orena's extensive role in prosecuting the War between rival factions of the Colombo Family. D'Arco, Ambrosino, and Gravano testified to Orena's ambition to gain greater control of the Family, specifically his aspiration to become official Boss. Through a campaign of publicly disparaging and discrediting his jailed superior, Orena intended to persuade the Commission to remove Persico as Boss. Orena announced that Persico was a "rat" because Persico had violated the prohibition against admitting the existence of the Mafia -- the code of Omerta. He also leveled more specific charges against his Boss. For instance, Orena criticized Persico for having provided information on the mob to a New York Daily News journalist and for having discussed with CBS's 60 Minutes the possibility of appearing on that show. According to Gravano, these accusations were the sort that would lead the Commission to label Persico "no better than an informer" -- a fatal black mark in mob circles.
Orena believed Scarpa was in the way of his efforts to become the Boss. D'Arco and Gravano testified that Orena approached them with a request for assistance in murdering Scarpa, who Orena suspected was fiercely loyal to Persico. D'Arco was unwilling to provide such assistance absent the authorization of his own superiors, Lucchese Boss Vic Amuso and Underboss Anthony "Gaspipe" Casso, both of whom were fugitives at the time. Gravano was, on Gotti's instructions, to assist Orena; his crew monitored Scarpa and was prepared to kill him. They never followed through, however, because Orena retracted his request, having decided that having another family eliminate Scarpa would not look good for an Acting Boss and might cause too much political strife.
In early 1991 Carmine Persico announced that "Allie Boy," upon his anticipated release from prison in June 1993, would become Boss of the Colombos. The announcement raised tensions between Family members loyal to Orena and those loyal to Persico. Strains escalated after Orena suggested that Colombo Consigliere Carmine Sessa disparage Carmine Persico to Colombo captains. Specifically, Orena cajoled Sessa to label the elder Persico a "rat" who should be "knocked down." Sessa demurred, instead reporting Orena's slur to Allie Boy's brother and Colombo captain, Teddy Persico. Upon learning of Sessa's disobedience, Orena planned to have Sessa killed at a "making" ceremony for new Mafia members.
Sessa caught wind of Orena's plan and attempted to strike first. He and three others waited in a car outside Orena's home on the night of June 20, 1991 with the intention of killing him. Orena, however, spotted them and was able to escape unharmed. Other Persico loyalists, after failing to kill a captain aligned with Orena that same night, fearing retaliation, retreated to a New Jersey hotel.
Ambrosino, D'Arco and Gravano testified that efforts were initiated by the other crime families to prevent these incidents from igniting a full-scale shooting conflagration. The Gambino, Lucchese and Genovese Families established a special committee to communicate with, and mediate between, the two Colombo factions. This Alternative Dispute Resolution strategy proved only partly successful in postponing hostilities even though it continued throughout the summer of 1991. Orena was present at all the ADR meetings, but Sessa refused to return after attending the initial one. Both the Luccheses and Gambinos supported Orena, and according to D'Arco, the committee's efforts to keep the peace were directed primarily at Orena, since he controlled a majority of the Colombo soldiers and seemed eager to open hostilities.
The detente ended on November 18, 1991. A crew led by William "Wild Bill" Cutolo, a captain allied with Orena, fired shots at Scarpa.
Overall, the government's evidence regarding the conduct of the War, and Orena's engineering of it, derived from three principal sources: (1) the testimony of Quattrache and Ambrosino; (2) the Audino car tapes; and (3) searches of various locations, including Orena's residence on April 1, 1992, the day of his arrest.
Ambrosino and Quattrache testified about the Persico faction's efforts to kill Orena and his supporters. Activities included the formation of "hit teams" and urgent attempts to locate Orena faction members. For example, in an effort to kill defendant Amato, Ambrosino and some others surveilled Amato's house and his wife for six weeks.
The taped conversations from "Chubby" Audino's car -- intercepted between February 6, 1992 and March 1, 1992 -- revealed many of the Orena faction's activities during the fray. Orena and his associates carried guns, frequently switched cars to avoid surveillance, and voiced concerns about being tracked by Persico factionalists. Orena would arrange meetings and determine whether associates should come "loaded" with a weapon. The tapes showed not only that the Orena crews were actively trying to kill Persico faction members, but which ones were deeply involved in that endeavor. In a February 26, 1992 conversation, "Chubby" Audino identified three Orena murder-crews by reference to their captains: defendant Amato, Vic Orena, Jr. and "Wild Bill" Cutolo.
The April 1, 1992 search of Orena's girlfriend's residence in Valley Stream, New York uncovered a plethora of incriminating evidence. When agents entered, Orena was in the basement with his sons, Vic, Jr. and John. Agents found an arsenal. There were fully loaded shotguns in each of the three basement closets. Extra ammunition was stored with the shotguns, including hollow-point bullets, shotgun shells, and a 16-round, 9 millimeter clip. On the main floor of the house agents found a fully-loaded pistol-grip shotgun and an ammunition belt holding numerous shotgun shells. In the crawl-space under the backyard wooden deck, they retrieved a black plastic garbage bag containing six loaded operable handguns and two extra clips.
Aside from the weaponry, the search uncovered a bullet-proof vest and three sets of mobile phones and beepers. Orena's briefcase was found in the second floor bathroom. It contained $ 55,000 in cash. Also seized were corruptly-obtained telephone toll records -- the sort that may be lawfully obtained only by subpoena -- and Coles directories, used to find the address to which a particular telephone number is assigned. Handwritten documents in the basement revealed that someone had already made lists of addresses, using the telephone numbers from the toll records, including those for the homes of Joseph Russo and Doris Schmelling, a friend of Teddy Perisco. Russo and Teddy Perisco were ...