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October 6, 2004.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Defendant Stephen Madori, who was found guilty by a jury of loansharking activities, moves for a new trial pursuant to Rule 33, Fed.R. Civ. P., claiming that the Government violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by failing to disclose certain materials relating to the relationship between the Government and a co-defendant, Charles Chiapetta. Although the motion was initially made on December 17, 2003, resolution was delayed by proceedings relating to the unsealing of various materials, and the final submission on the merits (a letter in the nature of a sur-sur-reply by defendant) was not received until July 16, 2004. The matter has now been fully briefed, and is ripe for decision. The motion will be denied. BACKGROUND

The superseding indictment on which Steven Madori was tried consisted of four counts charging him with various loansharking offenses related to a single transaction. Specifically, Madori was charged with conspiring to make an extortionate loan, actually making such a loan, conspiring to collect the loan by extortionate means, and actually threatening a victim with physical harm in order to collect the loan, in violation of 18 U.S.C. §§ 892, 894. After hearing evidence for four days, and deliberating for approximately a day, the jury returned a verdict of guilty on all counts on February 28, 2003. On August 18, 2003, Madori was sentenced principally to concurrent terms of fifty-one months of imprisonment on all counts. Bail pending appeal was denied, and he is serving his sentence. A co-defendant, Charles Chiapetta, pled guilty to an earlier version of the indictment on December 31, 2002, and was sentenced on September 3, 2003, principally to twenty-four months in prison. He is also serving his sentence.

  I. The Evidence at Trial

  The evidence at trial proved overwhelmingly that Madori participated in the making and collection of an extortionate loan to a businessman named Norman Meisenberg. Meisenberg testified that in 1997, he was having serious financial problems. Unable to raise money from legitimate sources, he turned to loansharks, borrowing large sums at exorbitant rates of interest. When he was unable to repay the loans, he sought yet another source of borrowing from a business associate named Jeff Troncone. (Tr. 38-47.)

  Troncone told Meisenberg that he did know a source of loan money, but that it would not be a good idea to turn to that source, because the lenders were dangerous people who were "connected" to organized crime. (Tr. 47-48, 55, 282.) Desperate for cash, Meisenberg rejected this advice, and Troncone arranged to introduce him to Chiapetta, from whom Troncone had earlier borrowed money himself. (Tr. 56, 110, 276-77.)

  Meisenberg met Chiapetta for the first time in approximately June or July of 1997 at a Portchester topless bar called the Diamond Club, which was owned by Madori. (Tr. 56-59, 286.)*fn1 Meisenberg sought a loan of $10,000, which Chiapetta said would have cost interest of 3%, or $300, per week. (Tr. 60-61.) After hearing Meisenberg's request, Chiapetta told him that "we will get back to you in a couple of days, I have to speak to someone." (Tr. 60.) A day or so later, Chiapetta advised Meisenberg that "we can do that deal." Meisenberg returned to the Diamond Club, where Chiapetta gave him $10,000 in cash. (Tr. 61-62.) Chiapetta told Meisenberg that if he didn't pay the money back, "you are going to have a big problem," which Meisenberg understood to mean that "I would face some physical harm if I couldn't pay it back." (Tr. 63.)

  A few weeks later, Meisenberg decided he needed an additional $5000, and sought to increase the loan. At a meeting at the Diamond Club with respect to this request, Chiapetta said, "someone wants to meet you," and took Meisenberg "into a back room in the Diamond Club and he introduced me to his associate," who turned out to be Madori. (Tr. 64.) After some small talk, Madori asked Meisenberg "Did you get your package? I said no. He said Charlie has it. He looked at me, said, do the right thing, and dismissed me." (Tr. 65.) Meisenberg received the additional $5000, and for over a year he made weekly payments of $450 in interest, which were collected in New York City either by Madori, Chiapetta, both together, or by an associate of theirs named Sal. (Tr. 64-66.) On occasion, Troncone would pick up payments that Meisenberg sent via Western Union, and drop off the money at the Diamond Club, handing it to whoever was at the door to give to "Charlie or Steve." (Tr. 287.) Eventually, he paid about $25,000, none of which was credited against the principal. Madori and Chiapetta refused to reduce the principal of the loan and insisted that Meisenberg still owed the full principal of $15,000. (Tr. 66.)

  Eventually, Meisenberg encountered difficulties making payments to the various loansharks from whom he had borrowed a total of about $150,000. After his wife received a phone call in which an unknown individual threatened to kill her and her family unless Meisenberg paid $25,000 immediately, Meisenberg reported his plight to the Federal Bureau of Investigation ("FBI") on July 13, 1999. (Tr. 67-68, 71, 226.) At the direction of FBI agents, Meisenberg began to wear a recording device to various meetings at which he made payments to his creditors. (Tr. 70-72.)

  The jury heard a number of these recorded conversations, corroborating Meisenberg's account of the efforts of Chiapetta and Madori to coerce him to repay the $15,000 he had borrowed. In a conversation on July 20, 1999, at the Diamond Club, when Meisenberg was four weeks behind in paying his interest, and Meisenberg could make only a partial payment, Chiapetta told Meisenberg, "when I give this to somebody, he's not going to like it one bit," and that if "[y]ou don't pay, there's a problem." Meisenberg understood this as a "threat" that "something physically could happen to me." (Tr. 81-82; GX 1.) A reasonable jury could easily have agreed that Chiapetta's profanity-laced tirades were intended to, and did, intimidate Meisenberg. (GX 1; Tr. 85.) FBI agents and other law enforcement officers surveilled the meeting, observed Meisenberg meeting with Chiapetta, and photographed them together. (Tr. 233-35, 259-61; GX 22.)

  Chiapetta agreed that he would "try to convince [Madori] not to talk to you" (GX IT at 14; Tr. 92-93) in return for Meisenberg's promise to meet the following week. The next week, Meisenberg met Madori and Chiapetta at a restaurant in Manhattan, to make an additional payment.*fn2 At that meeting, in Madori's presence, Chiapetta warned Meisenberg that the alternative to payment was "punishment": "You want it, you're gonna get it. You'll get punishment. We're trying to make it easy for ya, and you want punishment." (GX 2T at 6.) Madori proposed adding the overdue interest payments to the principal of the loan (id. at 4-5; Tr. 98-100), and made plain that the debt was owed to him, and that he would not have lent the money if Meisenberg had initially proposed to borrow the principal until August rather than January: "You committed to me you would bring it back in January, it's now fucking August. . . . You tell me you want to give it to me in August, then I don't give it to you." (GX 2T at 7; Tr. 100-101.) Chiapetta similarly deferred to Madori when making a proposal, noting (in Madori's presence) that what he proposed "could be overruled" by Madori. (GX 2T at 7; Tr. 101.) Meisenberg agreed to continue to make payments.

  Meisenberg did not make the promised payments. In an unrecorded phone conversation on August 24, when Meisenberg told Madori he did not have the money that was due the next day, Madori told him that "I am coming down anyway," which Meisenberg took as a threat because there was "only one other reason for him to come if I didn't have any money." (Tr. 108.) A few minutes later, with the recorder on, Meisenberg called Madori back, urging him not to come because "it makes me nervous," and "it's upsetting to me," to which Madori replied that "I'm pretty upset myself." A reasonable jury could easily have found implicit threats in Madori's repeated questioning about why Meisenberg would be nervous, and his concluding statements that "We'll just have a conversation . . . so we know where we are going," and that "We are not going to do this on the telephone anymore; it's about the last time you are gonna hear from me on the telephone, alright?" (GX 4, 4T.)

  Madori did not come down to Manhattan. Instead, Chiapetta kept the appointment to meet Meisenberg on the street in front of Meisenberg's office. Although Meisenberg attempted to make the meeting, the two missed each other in the traffic (Tr. 111), leading Chiapetta to make a furious phone call profanely demanding that Meisenberg come to Westchester. (GX 5.) When Meisenberg did not appear, or otherwise communicate with the lenders, they turned to other tactics. Meisenberg was out of the office the next two days, and received messages that both Chiapetta and Madori had separately come to see him unannounced. (GX 10T at 12.) Madori and Chiapetta also visited Troncone.

  Troncone, a businessman with a prior conviction for mail fraud, had first met Chiapetta in 1986, when he borrowed money from Chiapetta and one Tony Baker. (Tr. 276-78.) At Meisenberg's request, Troncone had called Chiapetta to see if Chiapetta could arrange a loan for Meisenberg. Troncone vouched for Meisenberg as a friend who could afford to make the payments. (Tr. 284.) Because he had made the introduction, Troncone was advised that he had a responsibility for making sure that Meisenberg repaid the loan. (Tr. 288.) Troncone later . . borrowed $7000 himself, at the same 3% per week rate. Chiapetta gave him the money, saying it was from "the club"; when Troncone made payments at the Diamond Club, as when he delivered payments from Meisenberg, he left the money "for Steve or Charlie." (Tr. 288-91.) In late August 1999, Madori and Chiapetta visited Troncone at his office in Connecticut. They showed up unannounced, and Chiapetta asked Troncone to go in the back room to speak privately. Both Madori and Chiapetta were "very visibly upset," because they thought Meisenberg either had contacted or was going to contact the government. They told Troncone that they had not heard from Meisenberg, and "encouraged" or "instructed" him to contact Meisenberg and "get him to call as soon as possible." At the end of the conversation, which was "very lively" and "[r]elatively gruff," Madori "made it very clear to me that he wasn't going to [] hold me responsible for the money, but he was holding me responsible for . . . Norman running to the government." (Tr. 295-97.)

  On September 2, 1999, Troncone called Meisenberg; Meisenberg recorded the conversation. (Tr. 298-300, 118-21; GX 10.) Troncone questioned Meisenberg as to why he was not in communication with "our friends," because "that kind of upsets everybody." (GX 10T at 3.) He told Meisenberg that Madori and Chiapetta had told him that he was no longer "responsible" for Meisenberg's failure to pay, and that "their reasoning" is that "it makes it worse for you that I'm not responsible." (Id. at 14-15; Tr. 303-04.) Troncone told Meisenberg, "you gotta call [Madori] . . . [be]cause the phraseology wasn't . . . it, it wasn't thrilling yesterday." (GX 10T at 16.) Troncone advised Meisenberg "as [a] friend," that he should "[g]et some money together and bring it up there. I don't care where you get it from. . . . You gotta get this out of the way." (Id.) They agreed that Meisenberg's feeling that he would not call because Chiapetta had insulted him would be "irrelevant" to Madori. (Id.) They agreed as well that Chiapetta was a "gofer" who "overdoes it," especially when Madori is around, and concluded that it would be bad if Madori were "upset." (Id. at 17; Tr. 125.) Meisenberg noted that Madori "frightens me." (GX 10T at 16; Tr. 124-25.) Troncone emphasized that Madori "was upset yesterday." (GX 10T at 26.)

  Meisenberg did indeed meet one last time with Madori and Chiapetta, at a Manhattan restaurant, on September 8, 1999, "[t]o discuss how I was going to repay them." (Tr. 126.)*fn3 After initially telling Meisenberg that the problem was that he had not been in touch ("We could have talked about it maybe . . . At the end of the first week [of arrears] you have to talk to us. . . . we can't keep calling and coming by your office . . . you know our problem. It's not gonna go away.") (GX 6T at 4), Madori became more emphatic: "Norman you're out of time. Your time is up. I want that money back. . . . I want the money back. . . . Like yesterday. . . . Go to your wife, go to your son, go to your uncle your mother, I don't care who you go to, I want my money. I ain't asking you either, I'm telling you. You can't put us on the pay no mind list for five fucking weeks." (Id. at 5.) Meisenberg promised to pay in two weeks. Madori's parting words were chilling: "I hope you're not just buying yourself two more weeks of time Norman. Because, because you're in the fucking red zone now. You got my nuts real twisted by jerking us off for five weeks. Because it becomes a non-money issue now it becomes a principle issue and that's when you go into the danger zone, when it becomes principle instead of money." (Id. at 10.) Meisenberg took Madori's statements to mean "either bring back the money or else . . . I'm going to get hurt." (Tr. 127.) A reasonable jury could easily have concluded that he was correct.

  Meisenberg called Madori one last time, to arrange a meeting to make the promised. . payment two weeks later, on September 24. (GX 7.) At the direction of the FBI, he did not make the meeting. (Tr. 134.) Instead, the FBI went to serve a subpoena on Madori. (Tr. 240.) Later, Madori and Chiapetta were arrested. (Tr. 337-40.)

  Madori did not testify or present any evidence. In closing argument, Madori's attorney argued that the Government had failed to prove beyond a reasonable doubt that there was ever a threat of physical force (Tr. 402), vigorously attacking the credibility of Meisenberg and Troncone as con artists trying to get out of repaying a legitimate if "unconventional" loan (Tr. 407), by falsely claiming to have been ...

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