The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
In one of the largest trials this district ever has seen, known popularly as the "Pizza Connection" case, twenty-one defendants stood accused of participating in a widespread conspiracy among members of the Sicilian mafia and La Cosa Nostra in the United States to import and distribute more than one and one-half tons of heroin and cocaine, accumulate in various pizza parlors more than one billion dollars of proceeds, and then smuggle the cash out of the country or launder it through a network of foreign bank accounts. Seventeen months of trial produced a transcript of more than 40,000 pages and resulted in numerous convictions on various of the thirty-five counts.
Now before this Court, more than eleven years after the guilty verdicts were entered, four of the defendants move to set aside their convictions pursuant to 28 U.S.C. § 2255.
I. Claims of Gaetano Badalamenti
Gaetano Badalamenti attacks his convictions on six grounds:
that (1) the government suppressed evidence favorable to his defense regarding the allegedly exculpatory opinion of a government witness, Tomasso Buscetta, and (2) regarding Buscetta's alleged affiliation with the CIA, in violation of c Brady v. Maryland4, (3) the government threatened Buscetta in order to induce him to testify more favorably to the prosecution, (4) Badalamenti received ineffective assistance of counsel at trial, (5) his sentence violated the terms of the order of extradition from Spain pursuant to which he was released into the custody of United States authorities,
and (6) his conviction of both narcotics conspiracy and continuing criminal enterprise counts violates the Supreme Court's holding in Rutledge v. United States.6
A. Alleged Suppression of Buscetta's Opinions
Gaetano Badalamenti, the former head of the Sicilian mafia, was chief among the defendants in the Pizza Connection case. Ousted from his position as the head of the Sicilian mafia commission in 1978, Badalamenti fled for his life to Brazil, from which he allegedly oversaw shipments of heroin to a distribution network located in the United States. The government's case against Badalamenti consisted primarily of tapes of intercepted telephone calls in which Badalamenti spoke with an alleged buyer in the United States regarding the shipment of "shirts," "parcels," and "containers," coupled with evidence tending to demonstrate receipt by Badalamenti's acknowledged subordinates of two shipments of narcotics in April 1983 and February 1984.
Central to the government's case was interpretation of Badalamenti's cryptic references contained on the tapes of the phone calls.
Leading off the trial for the government was Tomasso Buscetta, a self-confessed high-level Sicilian mafioso turned informer. In addition to detailing the structure of the Sicilian mafia and its rules and regulations, Buscetta identified voices heard on the intercepted phone calls and, on cross-examination, testified as to his beliefs regarding Badalamenti's involvement or lack thereof in drug trafficking. Specifically, Buscetta stated that Badalamenti "was not against and he did not deal in drugs."
When asked whether he ever had heard Badalamenti speak out about drug trafficking, Buscetta stated that "we were too concerned about other things to speak about drugs. I was certain that he was not working in drugs."
On redirect, however, Buscetta clarified his earlier testimony by stating that his opinion of Badalamenti's lack of involvement in narcotics had been based only on the period up to 1982, referred only to heroin and not cocaine, and had been premised on his knowledge that Badalamenti had been expelled from the Sicilian mafia and Buscetta's belief that mafia connections were essential to narcotics trafficking.
Badalamenti now claims that the government knew, but failed to disclose, that Buscetta held two opinions that Badalamenti believes would have exculpated him and to which Buscetta would have testified had he been asked about them at the trial. Badalamenti contends first that Buscetta believed that Badalamenti could not have been involved in drugs because Badalamenti was a member of the "old school mafia" which did not get involved in such things. Second, Badalamenti claims that Buscetta, if asked, would have testified that, in his opinion, the coded conversations on the intercepts did not pertain to narcotics.
As proof that the government knew of Buscetta's alleged opinions, Badalamenti offers (1) Buscetta's unsworn testimony in the Italian Maxi-trial in Palermo,
(2) a transcript in Italian and its translation into English of taped conversations between Buscetta and an American journalist, Jane Ryder, over dinner in Italy and an affidavit from Ms. Ryder,
and (3) an affidavit from Charles Rose, the former chief of the Narcotics Section of the United States Attorney's Office for the Eastern District of New York.
1. Standard for Evaluating Claim of Government Suppression
In order to establish a Brady v. Maryland violation, the defendant must show that (1) the government suppressed favorable evidence, and (2) the evidence the government suppressed was material.
A defendant cannot satisfy the suppression requirement if the defendant, directly or through counsel, "either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence."
As for the materiality requirement, "favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."
"A 'reasonable probability' is 'a probability sufficient to undermine confidence in the outcome' of the case."
2. Buscetta's Opinion Regarding the Old School Mafia
As the first step in his argument, Badalamenti offers two pieces of evidence in support of his claim that Buscetta in fact believed that Badalamenti could not have been involved in drug trafficking because he was a member of the old school mafia: Buscetta's testimony at the Italian Maxi-trial and the Charles Rose affidavit. The transcripts of Buscetta's testimony in the Italian Maxi-trial, which took place six months after Badalamenti had testified in the Pizza Connection trial,
quote Buscetta as stating that he previously had told an Italian judge that "[it] would have been impossible for [Badalamenti] to deal in drugs without having contacts with people belonging to the family," which, he stated, Badalamenti did not have.
In his affidavit, Charles Rose stated that Buscetta called him during his testimony in the Pizza Connection trial and asked to speak with him. At their subsequent meeting, Buscetta informed Rose that "Badalamenti could not be involved in heroin trafficking because Mr. Badalamenti was part of the 'old school mafia' who banned such criminal activity . . . [and] that he wanted to testify as to his beliefs, but felt be [sic] was being prevented from doing do [sic] by the prosecutors."
Assuming the admissibility of these submissions,
they do not demonstrate that Badalamenti is entitled to relief because Badalamenti "either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence."
Badalamenti knew of his and Buscetta's affiliations with the old school mafia and of the alleged divergence of views between the old and new schools with regard to drug trafficking. In fact, Badalamenti's counsel based a portion of his summation on the distinction.
Badalamenti's lawyer stated during Buscetta's cross-examination, out of the presence of the jury, that he hoped to elicit "evidence, that is known among people in La Cosa Nostra, such as Mr. Buscetta, that [Badalamenti] is not a drug dealer [and] that his alignment with those who oppose drugs is very material to demonstrating that."
During Buscetta's cross-examination, Badalamenti's counsel asked Buscetta whether he and Badalamenti were men of the old mentality of La Cosa Nostra,
the reasons for Badalamenti's expulsion from the Sicilian mafia,
whether he had ever heard Badalamenti speak out about drug trafficking
and whether he knew if Badalamenti was involved in drugs.
He elicited testimony that Buscetta "was certain that [Badalamenti] was not working in drugs."
Thus, there is every indication that Badalamenti was aware at the time of trial of Buscetta's opinions as to the supposed differences between the old and new schools of mafia, the implication of that distinction to narcotics trafficking, and as to Badalamenti's involvement in narcotics trafficking. Nor has Badalamenti offered any indication that the Italian trial testimony was not publicly available to the defense during the trial.
As Badalamenti knew or had ample means of discovering Buscetta's alleged views concerning the likelihood of Badalamenti's involvement in the drug trade based on the "old school" mentality, he has not satisfied the suppression requirement.
3. Buscetta's Opinion With Regard to the Intercepts
Badalamenti argues also that the government suppressed Buscetta's opinion that certain tapes did not relate at all to Badalamenti's involvement with drugs but rather revealed a plot to lure Badalamenti to the United States in order to kill him. Badalamenti's argument has two strains. First, he contends that the government suppressed Buscetta's opinion regarding the meaning of the coded tapes that were played at trial. Second, he argues that Buscetta formed his opinion of the plot to kill Badalamenti in part on the basis of tapes that never were turned over to the defense. He again offers Buscetta's Italian Maxi-trial testimony as well as the transcript of the taped conversations between Buscetta and Jane Ryder.
Buscetta testified at the Italian Maxi-trial that "the Americans did not interpret those phone calls the way I interpreted them. . . . The only involvement that [Badalamenti] had in drugs was that those people wanted to kill him, by order of the Sicilians."
Similarly, the relevant portion of Ms. Ryder's translation of her dinner conversations with Buscetta is as follows:
[Buscetta] "But Badalamenti doesn't say anything in those phone calls. (UI) even says: 'Mmm, he is all against it. . . ' And don't you see what they have done to get him? At a certain point, in the course of the phone call from America, he says: 'But how can we do it if he doesn't come to New York. . . . and he calls and says: 'You haven't done what you were supposed to do."
[Buscetta] "They took the decision over here. 'We have made the proposals', and this is what transpires from the phone calls. 'Badalamenti like that one. . .' but they were made by those who wanted to lure him to go to the United States to do him in."
[Ryder] "Did you already know this at the time of the New York trial?
[Buscetta] "I already said that at trial, because they had given me a tape for me to listen. After I had listened to all the tapes, I told them 'Look, listen to this, it's clear, they're waiting for im here in America to kill him. At a certain point they say: But we have his [nephew or grandson], if you like we can do in his [nephew or grandson], is that good?' 'No, no, we'd better wait for him.' So Badalamenti was aware of that. The Americans also were aware of everything."
[Ryder] So, my question is different. So, if it was just a trick, in what way . . . why did those men in New York make those phone calls?
[Buscetta] But those phone calls had one purpose only: to get Badalamenti. . . . The only purpose they had was to lure Badalamenti there, to kill him. So their phone calls are true, they are true. Because they want to do him in. So they make the most advantageous proposals possible to Badalamenti. But he didn't go there.
[Ryder] But did you explain all this to Giuliani?
[Buscetta] No, I told all this to Dick Martin.
[Ryder] And what did he tell you?
[Buscetta] No, it's fine, but this is not important.
[Ryder] So he didn't give a damn. The were not interested in knowing that?
[Buscetta] But the trial was against that very man. Because 'i lamenti' were the real traffickers, the Catalanos were those who were responsible for the drugs. But they tried to convict Gaetano Badalamenti, asserting that he was trafficking drugs, because they wanted to hit him hard. That is the thing. Because 'prelevanza' said no, it was not him who sent Catalano, and who is this Catalano.
According to Badalamenti, Buscetta's comments reveal his belief that the tapes played at trial did not relate to drug trafficking but rather to a plot to lure Badalamenti to New York to kill him and that the prosecutors were aware of this opinion. Additionally, Badalamenti contends that Buscetta listened to other tapes that described the plot and that never were turned over to the defense.
a. Buscetta's Opinion Regarding the Tapes Played at Trial
Even if Buscetta told the prosecutors that he believed the tapes played at trial did not involve drugs at all, but rather a plot to kill Badalamenti, Badalamenti has not demonstrated that the government suppressed that opinion.
The defense obtained copies of the intercept tapes well before trial and were aware that the interpretation of the references on the tapes was of central importance to Badalamenti.
The defense knew also that Buscetta had listened to the tapes, as he was asked at trial to identify the voices on them,
and that he was examined at trial as an expert on the mafia. Finally, the defense knew that Buscetta thought that people were looking for Badalamenti in order to kill him, as Buscetta in fact testified.
The defense therefore knew all of the facts that would have allowed it to ask Buscetta on the stand his opinion regarding the meaning of the tapes.
"A defendant . . . cannot satisfy the suppression requirement if the defendant . . . 'either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence. [citation omitted] If the defendant has information, but fails to use due diligence to make use of it, the defendant cannot later claim that the government 'suppressed' the evidence."
Badalamenti's contention falls ...