have supported this hypothesis. Evidence that the F.B.I. never tested fingerprints on the bag, and then lost it would have been similarly supportive of this theory, Orena would have argued. Thus, under Orena's present hypothesis, the planted cache of guns was Scarpa and DeVecchio's coup de grace -- the final shot that would have put Orena away, and would have removed the most intransigent obstacle to Scarpa and DeVecchio's violent campaign to have Scarpa enthroned as Acting Boss of the Colombo Family.
c. Remaining Charges
Defendants argue that the undisclosed evidence of DeVecchio's misconduct could have supported a theory leveled against the investigation as a whole, which would have undermined its integrity and wiped out the remaining charges in the indictment. Absent the undisclosed information, defendants had no means of making this wholesale challenge.
Defendants would have argued that, as the Special Agent supervising the Colombo Family investigatory squad, DeVecchio was instrumental to the case and prosecutors relied upon him to formulate it. He had detailed knowledge of the Colombo War investigation, and much of his information came from Scarpa. DeVecchio was in a position to steer the investigation away from Scarpa and personally influence the course of events which were ascribed to the Colombo War. Defendants assert that they reasonably would have argued that DeVecchio assisted Scarpa in developing and planting evidence against Orena, and that cooperating witnesses were coached.
In support for this theory, defendants would have relied upon many of the same pieces of undisclosed evidence that would have supported their other theories. Suffice it to say that defendants would again recite the myriad examples of DeVecchio's alleged assistance to Scarpa to buttress their assertion that an inference could have been raised that DeVecchio was predisposed or inclined to steer the investigation away from Scarpa. DeVecchio's supposed leak of Orena's partial address and his "We're gonna win this thing" exclamation would have indicated DeVecchio's own animus toward Orena and his collusion with Scarpa.
Against the backdrop of DeVecchio's leaks and Scarpa's apparent immunity from prosecution, defendants would have argued that the Colombo squad's failure to impede Scarpa until late August 1992 and its focus upon Orena and his associates would have invited, at the very least, serious doubt as to the thoroughness and integrity of the investigation. As the O.J. Simpson case and many others demonstrate, destroying the bona fides of the police is a tactic that has never lost its place in the criminal defense reasonable doubt armamentarium. See, e.g., Alan M. Dershowitz, Reasonable Doubts 68 (1996) ('police perjury -- generally committed in order to save a case -- can sometime backfire and destroy that case"); see also, Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 1571-74, 131 L. Ed. 2d 490 (1995)(disclosure would have enabled defense to question the thoroughness and good faith of the police investigation of homicide). Defendants allege that they would have brought all of this information before the jury by cross-examining DeVecchio or calling him to the stand as a defense witness. Scarpa would not, they suggest, have been able to make the case against Orena under such conditions, even if he had testified.
3. Suppressed Evidence Not Material
a. Defense Theories Not Supported By Suppressed Evidence
In spite of defendants' imaginative efforts to show how the "suppressed" evidence would have been utilized, they have failed to show how it could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict, as Kyles requires. Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995); United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995), cert. denied, 134 L. Ed. 2d 201, 116 S. Ct. 1056 (1996). Defendants fail because the theory they attempt to spin out of the undisclosed evidence can not be supported by that evidence. Moreover, the theory is such an extravagant and far-fetched distortion that, when viewed in the context of the complete record, it is not reasonably probable that it would "create a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 2402, 49 L. Ed. 2d 342 (1976). As a result, defendants are not entitled, under Brady, to a new trial or dismissal of the indictment as to any of the offenses for which they were convicted.
The court does not find that the evidence supports any but the most peripheral leaks -- and then, inadvertently -- by DeVecchio. For the purposes of the argument, however, it will assume that DeVecchio was the source of any leaks, that they were advertent, and that there were no other law enforcement leakers. Even so, rejecting DeVecchio's suggestion in his testimony that there were sources other than himself for Scarpa's knowledge, and putting the worst possible light on what Favo observed -- for the purpose of weighing the defense claims -- does not get defendants far enough to warrant a new trial.
The fact that Scarpa was a confidential F.B.I. informant who arguably may be inferred to have received valuable law enforcement information from his handler over the course of a more than decades-long working relationship is sufficient to show that they were close. DeVecchio's possible willingness to provide Scarpa with information that would place individuals in jeopardy -- e.g., Catanzano, Scarpa's loansharking customers, Miciotta, even Orena -- would certainly be troubling. Similarly, that Special Agent Favo was concerned about the intimacy of that relationship and suspected that DeVecchio was "compromised" doubtless suggests that DeVecchio was in need of supervision, and that Scarpa should not have been dealt with, contrary to Bureau procedure, by DeVecchio alone.
Even accepting these assumptions, and acknowledging the Scarpa-DeVecchio connection's troubling coziness, does not warrant the further inferences that Scarpa had a license to kill bestowed upon him by DeVecchio, that he committed the Ocera murder, that he initiated and fueled a faux Colombo War to consolidate his power, and that he did all this with DeVecchio's authorization and assistance. Even if all the information defendants have presented in their "record" were found to be subject to Brady -- and it is not, see supra section II(C)(5) and infra section IV(C) -- the sum of it would still be insufficient to support so fantastic a theory.
Allowing accumulations of vague suspicions supported by conveniently arranged evidence to give rise to misleadingly dark conclusions of deep, dark governmental conspiracies is a not uncommon process in today's lay world. It does not suffice in court. A rational and appropriately rigorous assessment of evidence and of assumptions underlying suspicions counsels caution. Defendants have failed to show that there is a "reasonable probability" that the "suppressed" evidence would have led a rational jury to reach the evil, facile conclusions defendants wish to draw. See, e.g., United States v. Persico, 92 Cr 351 Charles P. Sifton, C.J.), slip op. at 62 (E.D.N.Y. Feb. 18, 1997) ("The fact that jurors might have reacted irrationally to the revelations does not undermine confidence in the verdict").
The starting point for assessing the materiality of the "suppressed" evidence is examination of the DeVecchio-Scarpa relationship in the context of law enforcement practice. Associations between investigatory agencies and their informants are often necessarily characterized by fraternism. Information-trading on a "friend-to-friend" basis is an important, and at times vital, means for these agencies to insure a productive flow of reliable information. See Ira Silverman, Capital Cop, The New Yorker, July 29, 1996, at 24 (describing how a "legendary" Washington D.C. police detective cultivated close relationships with informants, giving his home phone number and describing them as "friends," in order to insure productivity). Mutual trust must be established. By the very nature of their roles, informants place themselves at great risk should their status be discovered. A handler must establish that he is worthy of confidence, that he can be discreet, and that the information the informant shares will not be revealed on the street and result in harm to the informant.
Disreputable though it appears, these associations may involve an amicable quid-pro-quo, given in the form of money, information, or promises of protection from arrest or severe punishment for crimes in exchange for information. Such exchanges may sometimes be a necessary evil, whether running local criminals, foreign spies, or potential terrorists. See, e.g., Clifford L. Karchmer, Keeping Informants Under Control, N. Y. Times, Aug. 3, 1981, at A15:
Informants work under terms that can appear confusing until it is realized that investigators normally strike bargains without supervisory review.
Ground rules are usually as amoral as the law of supply and demand, which dictates much informant activity. Agents wanting scores of street-level drug busts can recruit informants to part with cheap information on pushers. Mid-level dealers come more expensively: Contingent fee terms may be calculated for each enforcement target. Highly productive informants may be given de facto license to deal or steal.