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REITER v. U.S.

May 5, 2005.

Mark Reiter, Petitioner,
v.
United States of America, Respondent.



The opinion of the court was delivered by: RICHARD OWEN, Senior District Judge

OPINION AND ORDER

Petitioner Mark Reiter has moved for collateral review of his conviction pursuant to 28 U.S.C. § 2255. In 1988 he was tried, together with four co-defendants, on a 13-count redacted indictment which was renumbered 12S 87 Cr. 132 (RO), Exhibit A to Respondent's papers. It charged a variety of narcotics-related offenses, as well as a tax violation. Specifically, Reiter was charged in Count One with racketeering (with predicate acts including murder, conspiracy to commit murder, conspiracy to distribute narcotics, heroin distribution, and using a telephone to facilitate a narcotics violation), in Count Two with racketeering conspiracy, in Count Three with operating a continuing criminal enterprise ("CCE"), in Counts Five and Six with heroin distribution, in Count Seven with using a telephone to facilitate heroin distribution, and in Count Thirteen with conspiring to defraud the Internal Revenue Service.

  Reiter's trial commenced on May 2, 1988. The evidence against him included the testimony of numerous cooperating witnesses, including Leroy "Nicky" Barnes, James Jackson (who testified, among other things, that Reiter had supplied him with many kilograms of pure heroin, and that Reiter had personally ordered the murders of Beverly and Steven Ash after learning that Nicky Barnes had begun to cooperate with authorities (Tr. 316-343)),*fn1 Salvatore Corallo (who testified, among other things, that his responsibilities were "to test, package heroin, weigh heroin, deliver [kilogram quantities of] heroin and collect cash from the sales of those heroin deals" to Reiter (Tr. 2235-36)), Vito Loiacono (who testified, among other things, that he worked "distributing the heroin for Mark, pick[ing] up money, set[ting] up appointments, pick[ing] up the drugs and stor[ing] it" over a period of years (Tr. 4028-4048)), and Russell Fleming (to whom Vito Loiacono delivered heroin for Reiter, and who Reiter ordered killed after he learned that Fleming was cooperating (Tr. 3709-12, 4172)). The testimony of these individuals was corroborated by diverse and overwhelming evidence from other sources, including heroin supplied by Reiter, which was seized from Russell Fleming upon his arrest; surveillance reports; telephone calls recorded by means of a wiretap on Reiter's phone; a telephone call recorded by Salvatore Corallo in which Reiter offered Corallo $30,000 to plead guilty in a pending heroin conspiracy prosecution; another telephone call recorded by Corallo in which Corallo and William Battista discussed the difficulties in working for Reiter; evidence of Reiter's flight from New York upon learning that Jackson had begun to cooperate; documents and witnesses attesting to Reiter's extravagant lifestyle and his purchase of luxury items with cash; and evidence that Reiter had a no-show job that he used as a cover for narcotics trafficking.

  On August 25, 1988, the jury convicted Reiter and his co-defendants on all counts, and found that each RICO predicate had been proven beyond a reasonable doubt. Reiter was sentenced to two life terms of imprisonment, plus 60 years, followed by a lifetime term of special parole, and fines totaling $4 million.

  On direct appeal, Reiter complained that: 1) he had been denied a severance; 2) the Court excluded certain tape-recordings he wished to offer; 3) the Court excluded his proposed expert testimony; 4) the Court refused to require the Government to provide extra copies of tape-recordings; 5) the Government had improperly refused to provide immunity to proposed defense witnesses; 6) the Court had refused to provide the jury with special interrogatories on the CCE count, which would have required the jury to identify the five or more individuals Reiter supervised; and 7) the Court had failed in its jury instructions appropriately to distinguish between liability for conspiracy and liability for aiding and abetting. His claims were summarily rejected by the Court of Appeals, which found them "all to be without merit." United States v. Reiter, 897 F.2d 639, 646 (2d Cir. 1990).

  On April 2, 1997, more than seven years after his appeal was denied, Reiter filed a pro se habeas corpus petition. The form submitted by Reiter contained instructions requiring that he "include all grounds for relief and all facts supporting such grounds for relief in the motion you file seeking relief from any judgment of conviction." Petition at 2, number (6).

  In his petition, Reiter asserted that his due process rights had been denied by the Government's failure to provide him with exculpatory evidence tending to show that James Jackson had killed Beverly and Steven Ash.*fn2 Specifically, Reiter claimed that on a day when he was not present in court, it became apparent that there existed "other theories" of why Beverly and Steven Ash were killed, as well as exculpatory witness statements, and that he did not become aware of these matters until two years later, when he saw the trial transcript. Reiter claimed that his trial attorney was ineffective for having failed to investigate "exculpatory evidence known to other counsel at trial" (Petition at 7), and that his appellate counsel was ineffective "for failure to detect the disclosure issues." (Id.).*fn3

  The Government moved to dismiss the said petition as time-barred under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), arguing that there was no justification for Reiter's seven-year delay in filing. The Court dismissed the petition as untimely. Reiter thereafter appealed and on September 22, 1998, the Court of Appeals remanded the matter pursuant to its decision in Mickens v. United States, 148 F.3d 145 (2d Cir. 1998).

  Reiter thereafter obtained counsel, and counsel requested permission to supplement the record. Reiter then made several further submissions to the Court.*fn4 In certain very limited respects, the additional submissions amplified the claims contained in Reiter's original petition. Specifically, in a supplemental submission filed by counsel on December 29, 1998, Reiter contended that William "Billy" Battista — who had been described by various witnesses during the trial as a supervisee of Reiter's during the period charged in the Indictment — had been an FBI informant during the time period the Beverly and Steven Ash murders had allegedly been ordered by Reiter, and contended that FBI reports withheld by the Government would have revealed that: 1) Reiter was not in the New York area in 1982, when the hotel meeting described by Jackson at which Reiter allegedly ordered the murders of Beverly and Steven Ash occurred; 2) Battista knew that Reiter did not attend any hotel meeting in 1982; 3) witness statements supporting an alternative theory of the motive for the murders were not produced to the defense; and 4) reports of these statements would have shown that it was believed that Beverly Ash would be a witness for the Government against Reiter. (12/29/98 Supplement at 4-5). According to Reiter, this evidence would substantially have undermined the credibility of James Jackson, the sole witness to his alleged involvement in the Ash murders.

  As to many other claims, however, Reiter's supplemental claims were new as defined and hereafter detailed. Among other things, for example, Reiter asserted for the first time that the jury's failure to specify the three or more narcotics violations underlying the CCE conviction violated the Supreme Court's ruling in Richardson v. United States, 526 U.S. 813 (1999) (5/16/02 Amendment, Issue 11); that the failure of the jury to make findings concerning drug amounts violated the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000) (5/16/02 Amendment, Issue 18); that there was insufficient evidence that Reiter supervised five or more individuals (5/16/02 Amendment, Issue 8); that the Government violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to divulge a "deal" made with James Jackson and information collected during interviews with Mike Levy, the owner of Gianpietro's (5/16/02 Amendment, Issues 5 and 6); that the Court committed various errors in instructing the jury (5/16/02 Amendment, Issues 7(A), 7(B), 10, 12, 13, 14, 15, 16(A), 16(b) and 17)); and that the Government intentionally elicited false testimony that William "Billy" Battista was dead and implied that Reiter had killed him (5/16/02 Amendment, Issues 2 and 3).

  In other respects, the claims raised by Reiter in his supplemental submissions — including claims based on the Government denial of immunity to proposed defense witnesses — had previously been raised and rejected on direct appeal.

  As discussed hereafter, with the exception of Reiter's claim under Richardson, those claims that do not relate back to the claim Reiter asserted in his original petition are untimely and are dismissed. Reiter's original claims are discussed hereafter on the merits. His Richardson claim is rejected under a harmless error analysis.

  A. Claims That Do Not Relate To The Initial Allegations That The Government Withheld Exculpatory Evidence Relating To The Murders Of Beverly and Steven Ash, And That His Trial Counsel Was Ineffective For Having Failed To Investigate, Are Time-Barred

  At the outset of the detailed consideration, it might be kept in mind that the petition originally filed by Reiter in 1997 asserted three related claims: 1) that the Government violated due process by suppressing exculpatory information concerning the murders of Beverly and Steven Ash; 2) that trial counsel was ineffective for having failed to investigate this information and an alternative murder theory revealed to his co-defendant's counsel on a day that he and his attorney were not in court; and 3) that appellate counsel was ineffective for having failed to pursue this issue on appeal.

  In December 1998 and May 2002, however, Reiter asserted for the first time a variety of claims that bear no relation to the said three claims asserted in his original petition. These claims are all time barred under relevant legal standards. In addition, some of the new claims are not cognizable on collateral review, and others plainly fail on the merits.

  1. Applicable Legal Standards For Amendments to 2255 Petitions

  Reiter invokes Federal Rule of Civil Procedure 15 (a) as the basis for this Court's jurisdiction over the claims contained in the Amendments to his petition. Rule 15(a) provides, in relevant part: "A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). But the Government had already responded to Reiter's initial petition, and did not give consent to any amendments. Thus, Reiter's amended petition could have been received "only by leave of court[,]" with leave to amend given freely, absent "bad faith, undue prejudice to the opposing party, or futility of amendment." United States v. Pittman, 209 F.3d at 317 (citing, inter alia, Foman v. Davis, 371 U.S. 178 (1962)). Where a cause of action is barred by the statute of limitations, however, amendment would be futile and is denied. Id.

  a. Claims Filed After April 24, 1996 Are Generally Time Barred

  Reiter's conviction had become final before the AEDPA added a one-year statute of limitations period to Section 2255. See 18 U.S.C. § 2255 (1). Therefore, Reiter had one year from the effective date of the AEDPA to file all of his claims under § 2255. See Mickens v. United States, 148 F.3d 145 (2d Cir. 1998). The AEDPA became effective on April 24, 1996. While Reiter's original petition was filed on April 2, 1997, and thus was timely, he did not file his first motion to supplement the petition until October 28, 1998, and he did not actually supplement the petition before December 29, 1998, when he filed the first of three additional submissions and amendments. Because his amendments were filed after the statute of limitations expired, the amended claims are generally time-barred under subsection (1) of § 2255.

  b. The Relation Back Doctrine

  In order for any of Reiter's amended claims to be considered timely here, each must have related back to the claims in his original petition in accordance with Federal Rule of Civil Procedure 15(c). See Fama v. Commissioner of Correctional Services, 235 F.3d 804, 81516 (2d Cir. 2000). Rule 15(c) provides, in relevant part:
An amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.
  In order to "relate back" under Rule 15(c), an untimely § 2255 claim "must have more in common with the timely filed claim than the mere fact that they arose out of the same trial and sentencing proceedings." Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000); accord United States v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002); Rodriguez v. United States, 286 F.3d 972, 981 (7th Cir. 2002); United States v. Pittman, 209 F.3d 314 (4th Cir. 2000); United States v. Duffus, 174 F.3d 333 (3d Cir. 1999); United States v. Cravcraft, 167 F.3d 451 (8th Cir. 1999). Rather, "in order to relate back, the untimely claim must have arisen from the same set of facts as the timely filed claim, not from separate conduct or a separate occurrence in both time and type." Davenport, 217 F.3d at 1344; accord Hicks, 283 F.3d at 388 ("both time and type") Rodriguez, 286 F.3d at 981 ("same set of facts" and "both time and type"); Pittman, 209 F.3d at 318 ("both time and type"); Duffus, 174 F.3d at 337 ("same set of facts"); Craycraft, 167 F.3d at 457 ("same set of facts" and "both time and type"). This is so that the Government has sufficient notice of the facts and claims giving rise to the proposed amendment." Hicks, 283 F.3d at 388 (quoting Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000)).

  Thus, "[a]n untimely amendment to a § 2255 motion which, by way of additional facts, clarifies or amplifies a claim or theory in the original motion may, in the district court's discretion, relate back to the date of the original motion if and only if . . . the proposed amendment does not seek to add a new claim or to insert a new theory into the case." Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 2001) (emphasis in original) (citation omitted); see also Rodriguez, 286 F.3d at 981 ("[T]hese circuits have been uniform in their denial of amendments that would add a new claim or theory of relief."). However, it is not sufficient for an untimely amendment merely to assert the same general type of legal claim as in the original § 2255 motion. See United States v. Craycraft where the Eight Circuit held that an untimely claim of ineffective assistance of counsel for not filing an appeal did not relate back to timely ineffective assistance claims for not pursuing a downward departure, not raising an objection at trial, and not challenging a prior conviction. Craycraft, 167 F.3d at 456-57. The court concluded that counsel's failure to appeal was "a separate occurrence in both time and type" from a failure to pursue a downward departure or to object at trial. Id. at 457; see also Duffus, 174 F.3d at 336 (claim of ineffective assistance for failure to move to suppress evidence did not relate back to claim of ineffective assistance on appeal). Moreover, it is appropriate to note that the one-year statute of limitations imposed by the AEDPA applies regardless of any finding of prejudice. See Duffus, 174 F. 3d at 338 ("[U]sually statutes of limitations operate without taking prejudice from delay into account. A prisoner should not be able to assert a claim otherwise barred by the statue of limitations merely because he asserted a separate claim within the limitations period."). Indeed, courts have dismissed attempts to amend timely Section 2255 petitions with time-barred claims even where the amended petition is filed prior to filing of the government's response to the original petition. See Pittman, 209 F.3d at 316; United States v. Cracraft, 167 F.3d at 453.

  c. Rule 15 (d) Is Inapplicable Here

  Reiter makes no attempt to contend that the claims asserted in his amended petition relate back to his initial claims in accordance with Rule 15 (c). Instead, Reiter invokes Federal Rule of Civil Procedure 15 (d), which concerns the standards for submitting "supplemental pleading[s] setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Rule 15 (d), however, is completely inapposite. It has no bearing on the timeliness of Reiter's amendment to his § 2255 petition. See Wright & Miller, Federal Practice and Procedure § 1504 (differentiating between amendments under Rule 15(a) and supplements under Rule 15 (d)). Because none of the events which form the basis for the claims contained in Reiter's amended petition occurred after he filed his petition in April 1997 (rather, they all occurred during his trial), Reiter's motion cannot be considered a "supplement" to his initial petition. See, e.g., Hicks 283 F.3d at 386. In any event, even a supplemental claim filed under Rule 15 (d) would either have to be timely filed or relate back to the claims contained in the initial petition, as discussed above. See Federal Practice and Procedure, § 1508. 2. Claims Two Through Ten and Twelve Through Eighteen of Reiter's First Amended Petition, As Well As The Claim In His Second Amended Petition, Are Dismissed

  As described above, Reiter raised only three claims in his initial petition, all related to the Government's alleged suppression of exculpatory evidence concerning the Ash murders, and his attorneys' failure to pursue the matter. With the exception of Issue #1 in the Amended Petition dated May 16, 2002 (which is discussed below), and Reiter's Richardson claim (also discussed below) none of the other issues raised in Reiter's supplemental submissions relates back to these original claims. Thus, each is dismissed as time-barred, as well as on the merits.

 
Issue #2: The Government Improperly Argued That Reiter Killed Battista
Issue #3: The Government Created The False Impression That Battista Was Dead
  The second and third issues raised in Reiter's May 2002 Amendment concern what Reiter alleges as a misimpression created by the Government at trial that Bill Battista — a criminal associate of Reiter's — was dead, and that Reiter had killed him. In particular, Reiter contends that the Government violated his Sixth Amendment rights when it "argued in summation that Reiter killed Battista" and that his attorneys were ineffective for failing to object and raise the issue on appeal. See 5/16/02 Amendment at 35-39 (Issue #2). Reiter also contends that the Government violated due process when it allowed an FBI agent to testify that Battista "may be dead," when in reality the Government knew that Battista was alive.
  These claims bear no relation to the claims asserted in Reiter's initial petition. They arise out of a different set of facts and are different in both time and type. Accordingly, they are time-barred and are dismissed. Even if these claims had been timely filed, however, they fail on the merits. As Reiter admits in his brief, his attorney did object at the trial when Vito Loiacano first testified that Reiter said "he heard that [Battista] was found in a van on the Major Deegan." (5/16/02 Amendment at 36 (quoting Tr. 4047-48)). Furthermore, Reiter's attorney made clear during a sidebar conference that he didn't "want [the Government] to argue to the jury that Billy Battista is dead or found in a van," and the Government agreed that it would not make such an argument. Id. (quoting Tr. 7520-21). Later, after FBI Special Agent Noone had testified that he did not know whether Battista was dead or alive as of six months before the trial, Reiter's own counsel elicited testimony from the FBI agent that, as of that very day, Battista might be dead and that Battista had not been found anywhere:
Q. [By Reiter's counsel] As of six months ago do you know whether Billy Battista was dead or alive?
A. No, I don't.
Q. Today as you sit here on the witness stand, do you know whether he is alive or he is dead?
A. From personal knowledge, I haven't seen Battista in three years.
Q. From knowledge that you have known and reports and whatever, do you know whether he is dead or alive?
A. By hearsay?
The Court: That's what you are being asked?
A. I believe that the opinion would be that he may be dead.
Q. Has he been found any place?
A. No, sir. (Tr. 7522). On redirect, Special Agent Noone made clear that Battista had been an FBI informant, and that Battista had become a fugitive in approximately 1985, after it was revealed that he was an informant. (Tr. 7572-73). Thus, although Vito Loiacono did relate a conversation with Reiter in which Reiter claimed that Battista become a cooperator and had thereafter been "found in a van," the evidence in its entirety made clear that this was not, in fact, the case.*fn5
  Moreover, Reiter mischaracterizes the Government's summation. The prosecutor did not argue to the jury that Reiter "killed" Battista. (5/16/02 Amendment at 38). Rather, the Government argued to the jury that Reiter got rid of Battista and replaced him with Loiacono after Reiter came to suspect that Battista was an informant. (Tr. 8789) (quoted in 5/16/02 Amendment at 38). This argument accurately reflected the testimony given by Loiacono. Moreover, the fact that Reiter's attorney — who had previously made clear that the Government should not be permitted to argue that Reiter killed Battista (supra) — did not object when this statement was made in summation. This reflects not ineffective assistance of counsel, but instead counsel's reasonable belief that the prosecutor's statement in summation did not constitute the type of improper argument the Government had agreed at sidebar not to make.
 
Issue # 4: Discovery of "New Evidence" Allegedly Impeaching the Testimony of James Jackson
  Reiter contends in Issue # 4 that he has newly discovered evidence that would have contradicted Jackson's testimony that the scar on Romero's hand came from a wound that Romero received during the murder of Barry "Bones" Wilson. (5/16/02 Amendment at 41-45). The purported new evidence consists of (1) a letter from Romero, dated June 28, 2000, in which Romero claims that he received the scar on his hand as a result of a fight with his girlfriend; and (2) an "easy-to-make" affidavit from David Bell dated August 7, 2000 — long after the trial — in which Bell claims that he was never in a midtown hotel room with Jackson and Romero in 1982, from which Reiter contends that Jackson's testimony concerning the meeting with Reiter was a fabrication.

  As an initial matter, Romero's proposed innocent explanation of the scar on his hand was not newly discovered news to Reiter. Indeed, during trial, Reiter's trial counsel informed the Court — in the context of arguing that the Government should be required to immunize Romero — that counsel had been informed Romero did not receive the cut on his hand as the result of a homicide. (Tr. 6331-32).

  In any event, it is plain from the dates on Romero's letter and Bell's affidavit that Reiter waited almost two years to assert this claim from the time that he either allegedly learned of it, or could have discovered it through the exercise of reasonable diligence. Accordingly, this issue is also time barred. See 18 U.S.C. § 2255(4) (the one year statute of limitations runs from the "date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence").

  Nor can the claim be said to relate back to Reiter's original claims. Although Reiter initially raised a claim based on purportedly exculpatory material concerning the murders of Steven and Beverly Ash, he made no reference to the scar on Romero's hand, which was — according to the testimony at trial — the result of a cut received during the murder of Barry "Bones" Wilson. Because this claim arises out of a different set of facts and is of a different type, it is time-barred.

  Moreover, even if it were not untimely, this claim is procedurally barred. Reiter attempted to call Romero at trial to testify about his scar, but Romero invoked his Fifth Amendment right and refused to testify. (Tr. 6235-36). On appeal Reiter argued unsuccessfully that the Government should have been forced to grant Romero immunity so that he could testify. Reiter cannot now relitigate this issue under the guise of "newly discovered evidence." It is well settled that federal prisoners may not use a Section 2255 motion to relitigate issues raised and addressed on direct appeal. See, e.g., Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995). If the same issue was raised and addressed on appeal in a slightly different form, it is considered raised and addressed. Id. at 34 (holding that a habeas corpus claim that is merely a "slightly altered rearticulation of a claim that was rejected on . . . direct appeal" is still considered "raised and addressed."); see also Talj v. United States, 1997 WL 249964, at *6, n. 2 (S.D.N.Y. May 12, 1997).

  Furthermore, even if Romero had been immunized, trial counsel could hardly have expected him to be helpful as a defense witness. Romero — who had previously been convicted of heroin distribution offenses — was identified by several witnesses as a key participant in the Jackson organization, and was convincingly portrayed as an extremely vicious individual even apart from the Barry "Bones" Wilson throat-slashing incident. Assuming, arguendo, that Romero had been immunized and had agreed to testify, his credibility could hardly have survived much "kicking around", and he could well have further incriminated not only Reiter, but Reiter's co-defendants as well. As argued by the Government on direct appeal, Reiter's strategy was transparent: make the utterly implausible claim that the defense was dependent on the testimony of criminal accomplices and co-racketeers, and then claim a denial of due process based on the Government's refusal to provide blanket use immunity to the putative witnesses.

 
Issue # 5: The Government Failed to Disclose All the "Deals" Given to James Jackson
  Reiter contends in Issue #5 that the Government failed to disclose evidence of an agreement with James Jackson to not prosecute him for the murder of Daisy Whitten. (5/16/02 Amendment at 46-49). In any event, Jackson testified about the many agreements he had with the Manhattan District Attorney's Office, the Bronx District Attorney's Office, and the United States Attorney's Office, and those agreements were entered in evidence. These included his admitting involvement in over ten murders, of which he personally committed four. He also testified that because he had failed to tell the Government about the Daisy Whitten homicide until after the plea agreements were signed, he could be prosecuted for that homicide. (Id. at 46-47 (quoting Tr. 611-612, 61516, 699-700)). Ultimately, Jackson was not prosecuted for the murder of Daisy Whitten. On that basis, Reiter speculates that the Government had made another "deal" with Jackson that was never disclosed to the defense and the jury against the above numerous admitted murders. But the absence of a specific agreement as to the Daisy Whitten murder as to which Jackson admitted on this trial could hardly have had further jury impact.

  Finally, this claim is time-barred because it bears no relation to the claims asserted in Reiter's initial petition. In his initial § 2255 motion, he made no mention of any undisclosed promises to Jackson. Issue # 6: The Government Failed To Disclose Exculpatory Information From Mike Levy, and Presented At Trial A False Theory That Levy Was A Reiter Supervisee

  In Issue # 6, Reiter alleges that the Government falsely argued to the jury that Mike Levy was a supervisee of Reiter's, and improperly failed to disclose the substance of a 1987 interview of Levy by the prosecutors, during which Levy denied any involvement in Reiter's narcotics business. Again, this claim bears no relation to the claims asserted in Reiter's initial petition, because it arises out of a different set of facts and is different in both time and type. Accordingly, this claim is time-barred and is rejected.

  In any event, for several reasons this claim fails on the merits. Jackson, in the earliest days of the trial testified that through Mike Levy, who had a clothing store, (Gianpietro's) was one way to contact Reiter. (Tr. 445-6).*fn6

 
Q. Directing your attention to sometime later in 1984, did there come a time when you attempted to contact the defendant, Mark Reiter?
A. Yes.
Q. How did you attempt to contact him?
A. Well, my sources, the guys that were my connects, were all tied up, one got busted. I went down to Gianpietro and I spoke to Mike Levy. I said, "Listen, I got to get in touch with Mark."
Levy would get in touch with me. He said, "Wait right here." He went outside of the store and came back and said, "He'll be here in a little while." About 15, 20 minutes, Mark arrived.
  First, Reiter mischaracterizes Levy's affidavit when he argues that Maria Galeno, "the lead prosecutor" in Reiter's case, "conducted" an interview of Levy in 1987. (5/16/02 Amendment at 51). The most that Levy himself says about AUSA Galeno is that she was "[o]ne U.S. Attorney who kept coming in and out of the room." (Levy Aff. at T 11, App. 118-120, 5/16/02 Amendment). Second, Levy's post-trial denial of any participation in Reiter's enterprise by no means demonstrates the Levy was not involved. Nor, obviously, does it demonstrate the Government's knowledge that he was not involved. Finally, Reiter himself, knowing of Levy from the early trial testimony, would have known full well what Levy would say if, in fact, Reiter had never used Levy or Gianpietro's to facilitate narcotics trafficking, or if, in fact, Reiter had never exercised any supervision over Levy's activities. Nothing prevented Reiter from calling Levy as a defense witness. Therefore, even if Levy's new and self-serving testimony were credited, the Government did not suppress any evidence in violation of its Brady obligations. See United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995) ("evidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of that evidence" (quotations omitted)); United States v. Middlemiss, 217 F.3d 112, 123 (2d Cir. 2000) ("Because defendants already were aware of the allegedly exculpatory evidence, they suffered no Brady violation"); United States v. Zagari, 111 F.3d 307, 320 (2d Cir. 1997) ("Brady cannot be violated if the defendants had actual knowledge of the relevant information").
 
Issue # 7(A): The Court Failed to Instruct the Jury That A Government Informant Cannot Be a Supervisee
Issue # 7(B): The Court Failed to Instruct the Jury That A Mere Purchaser Cannot Be A Supervisee Issue # 16 (A): The Court Failed to Instruct the Jury That A Government Informant Cannot Be a Co-Conspirator Under RICO
Issue # 16 (B): The Court Failed to Instruct the Jury That A Mere Purchaser Cannot Be A Co-Conspirator Under RICO
  In Issues 7(A) & (B), Reiter alleges that the Court failed properly to instruct the jury regarding who could properly be considered a supervisee for purposes of the CCE count. Similarly, in Issues 16(A) & (B), Reiter alleges that the Court failed to properly instruct the jury regarding who could properly be considered a co-conspirator for purposes of Racketeering Act 9 in Count 1. Reiter contends that, as a matter of law, neither informants, nor "mere purchasers" of controlled substances can be considered to be supervisees or co-conpirators. He further contends that his trial counsel was ineffective for failing to object to these instruction, and his appellate counsel was ineffective for failing to raise these arguments on appeal.

  These claims bear no relation to the claims asserted in Reiter's initial petition. They arise out of a different set of facts and are different in both time and type. None of the claims in Reiter's initial § 2255 motion concerned the Court's instructions to the jury, in general, or the elements of the CCE count or RICO counts, in particular. Accordingly, they are time-barred and are dismissed. (And see further discussion hereon under "Issue 8" immediately hereafter).

 
Issue # 8: Insufficient Evidence To Find That Reiter Organized, Supervised, Or Managed Five or More Persons
  In Issue #8, Reiter contends that there was insufficient evidence for the jury to find him guilty on the CCE count, 21 U.S.C. § 848, because there was insufficient evidence to prove that he had supervised five or more persons. This claim, however, bears no relation to the claims asserted in Reiter's initial petition. It arises out of a different set of facts and is different in both time and type. None of the claims in Reiter's initial § 2255 motion concerned the sufficiency of the evidence, in general, or the CCE count, in particular. Accordingly, this claim is time-barred and is dismissed.

  Furthermore, Reiter raised this very same argument on appeal and it was rejected by the Second Circuit. See United States v. Reiter, 897 F.2d 639, 646 (1989). In his appellate brief, Reiter argued that the jury might not have found that five or more individuals were supervised by him because the Government had failed to introduce sufficient evidence at trial. In particular, Reiter contended that there was insufficient evidence that his son, Greg Reiter, and Catherine Burke were supervisees. Similarly, Reiter contends in his amended petition that there was insufficient evidence for the jury to find that he supervised Greg Reiter and Catherine Burke, among others. (5/16/02 Amendment at 64-72). Reiter cannot relitigate this issue. See, e.g., Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995).

  Finally, this is not the type of claim cognizable under Section 2255. The courts have repeatedly held that "[c]ollateral attack on a final judgment in a federal criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes `a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). A challenge to the sufficiency of the evidence falls well beyond these narrow limits.

 
Issue # 9: The Telephone Count, 21 U.S.C. § 843, Must Be Overturned
  In Issue #9, Reiter argues that the Court improperly instructed the jury that a conversation warning another person about a threat to a criminal narcotics conspiracy could be a violation of 21 U.S.C. § 843. This claim, however, bears no relation to the claims asserted in Reiter's initial petition. It arises out of a different set of facts and is different in both time and type. None of the claims in Reiter's initial § 2255 motion concerned the jury instructions, in general, or the telephone count, in particular. Accordingly, this claim is time-barred and is dismissed.

  Furthermore, even if this claim were timely, it fails on the merits. Although Reiter's counsel objected to the jury instruction during the trial, see 5/16/02 Amendment at 74-75, Reiter failed to raise the issue on appeal. It is well-settled that those convicted of federal crimes may not "save" claims for a habeas petition that they could have raised on direct appeal. See United States v. Frady, 456 U.S. 152, 167-68 (1982). The only exceptions to this rule are claims based on the allegedly ineffective assistance of counsel, Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993), and cases where "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Reiter has not claimed the benefit of either exception for Issue # 9. Therefore, the claim is dismissed.

 
Issue # 10: The Court Constructively Amended Count Five of the Indictment
  In Issue #10, Reiter contends that the Court constructively amended Count 5 of the Indictment by failing to instruct the jury that it must find that Reiter distributed at least 100 grams of heroin. As with the other issues discussed above, this claim bears no relation to the claims asserted in Reiter's initial petition. It arises out of a different set of facts and is different in both time and type. None of the claims in Reiter's initial § 2255 motion concerned the adequacy of the Courts' instructions to the jury or Count 5 of the Indictment. Accordingly, this claim is time-barred and is dismissed.

  Issue # 12: The Court Constructively Amended the Indictment as to Supervisees In Issue #12, Reiter contends that the Court constructively amended the Indictment when it instructed the jury that the supervisees in the CCE count, and the coconspirators in Racketeering Act 8, need not be co-defendants nor persons specifically identified in the Indictment. This claim, however, bears no relation to the claims asserted in Reiter's initial petition. It arises out of a different set of facts and is different in both time and type. None of the claims in Reiter's initial § 2255 motion concerned the adequacy of the Courts' instructions to the jury, in general, or the charges for Count 3 of the Indictment or Racketeering Count 8, in particular.

  In any event, Reiter is procedurally barred from raising this issue. Although Reiter's counsel objected at trial to the jury charge, Reiter failed to raise this issue on appeal. Therefore, he cannot raise it now in his § 2255 motion. See Frady, 456 U.S. at 167-68.

  Moreover, this claim fails on the merits. The Court's instruction was entirely proper. As Reiter admits, the Government sent him two letters listing alleged supervisees and unindicted co-conspirators. At trial, the only individuals that the Government argued were supervisees and/or co-conspirators were among the names it had previously disclosed in its letters. Not all of these individuals, however, had been indicted as coconspirators or otherwise named in the Indictment. Therefore, the Court correctly instructed the jury that the five supervisees necessary for a violation of Count 3 "may be persons identified in the indictment or they may be others." (Tr. 9681). Compare Sand, Modern Federal Jury Instructions, Instr. 56-29 ("These persons do not have to be named in the indictment. They could be others. . . .").

  Issue # 13: The Jury Instructions Constructively Amended the "Violations" Identified in the CCE Count In another attack on the CCE instructions to the jury, Reiter claims in Issue #13 that the Court constructively amended the Indictment by directing the jury to consider "violations" that were not specifically identified in the Indictment as part of the "continuing series of violations." (5/16/02 Amendment at 93-99). As discussed above, none of the claims in Reiter's initial § 2255 motion concerned the adequacy of the Courts' instructions to the jury, in general, or the CCE charges, in particular. Therefore, Issue # 13 does not relate back to the original petition and are dismissed as untimely.

  In any event, this claim fails on the merits. It was not improper for the Court to charge that the jury could consider violations that were not "separately charged" in the Indictment. (5/16/02 Amendment at 95 (quoting Tr. 9681)). Even post-Richardson — in which the Supreme Court ruled that the narcotics violations forming the "continuing series" must be found by the jury beyond a reasonable doubt — the model jury charge contained in Modern Federal Jury Instructions for the second element of a CCE count instructs: "These violations do not have to be convictions or separate counts in the indictment." Sand, Modern Federal Jury Instructions, Instr. 56-28.

  Moreover, Reiter cannot raise this claim now, because he failed to raise it on direct appeal. See Frady, 456 U.S. at 167-68.

 
Issue # 14: The Evidence Presented at Trial and The Jury Instructions Constructively Amended the Time Period Alleged in the Indictment for Count 3
  Reiter's Issue #14 raises yet another claim that the CCE count in the Indictment was constructively amended at trial. For the reasons set forth in Issue Nos. 12 and 13, this claim does not relate back to Reiter's initial petition and is dismissed as untimely. Furthermore, this claim is procedurally barred because Reiter failed to raise it on appeal. See Frady, 456 U.S. at 167-68.
 
Issue # 15: The Evidence Presented at Trial and The Jury Instructions Constructively Amended Count 7 of the Indictment
  In Count 7 of the Indictment (and Racketeering Act 12), Reiter was charged with using a telephone in the commission of a narcotics offense. Reiter alleges in Issue # 15 that this count was constructively amended by an instruction that allowed the jury to consider any phone call placed into evidence by the Government, rather than the specific phone call identified in the Indictment. (5/16/02 Supplement at 104-106).

  This claim bears no relation to any of the claims asserted in Reiter's initial petition. It arises out of a different set of facts and is different in both time and type. None of the claims in Reiter's initial § 2255 motion concerned the adequacy of the Courts' instructions to the jury, in general, or the charges for Count 7, in particular. See also, supra Issue # 9.

  Furthermore, this claim fails on the merits. Reiter complains about the following instruction given by the Court:
Although not specifically charged as separate crimes in the indictment, the government contends that defendant Mark Reiter committed numerous other violations of Title 21, United States Code, Section 843 involving the unlawful use of a telephone conversation in which Mark Reiter participated and the government contends this was such an unlawful use of the telephone under the statute to facilitate narcotics transactions and can be considered by you on this count.
(Tr. 9679, emphasis added). Contrary to Reiter's suggestion, this charge was given not in connection with the telephone count or the corresponding racketeering act — both of which were specifically related to the September 2, 1987 call in which Ruggiero warned Reiter that Jackson had left the MCC, but instead in connection with the CCE charge. Thus, there was no constructive amendment of Count 7 or Racketeering Act 12. Issue # 17: The Court Improperly Instructed the Jury That it Need Only Find One "Violation" To Find Reiter Guilty On The CCE Count

  In Issue #17, Reiter contends that the Court erroneously instructed the jury that it need only find that Reiter committed one narcotics offense, rather than a "continuing series of violations" in order to convict him on the CCE count. (5/16/02 Amendment at 111-114). For the reasons set forth in Issue Nos. 12, 13, and 14, this claim does not relate back to Reiter's initial petition and is dismissed as untimely.

  Even if this claim were not time-barred, it fails on the merits. Reiter misleadingly quotes from other portions of the Court's instructions on the CCE count and misquotes the instruction given for the second element of the offense. (5/16/02 Amendment at 112-13). The Court's actual instruction to the jury on the CCE count was as follows:
The second element you must find . . . is that he committed one or more of these offenses as part of a continuing series of violations by him of federal narcotics laws. In this case the word series means three or more such violations.
(Tr. 9680). This instruction was proper and made it clear that the jury needed to find that Reiter had committed at least three narcotics violations.

  Issue # 18: Apprendi Should Apply Retroactively

  Reiter's sentence on Count 5 of the Indictment was based upon drug amounts determined by the Court, rather than by the jury. For this reason, Reiter argues in Issue #18 that he was sentenced in violation of the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), and that Apprendi should be applied retroactively to reduce his sentence. This claim fails because the Second Circuit Court of Appeals has joined many other circuits in holding that Apprendi does not apply retroactively. United States v. Coleman, 329 F.3d 77 (2d Cir. 2003). The Second Amendment to the Petition: Insufficiency of The Evidence On Count Five

  On December 18, 2002, Reiter filed a second amendment to his petition, in which he argued that the evidence was insufficient for the Court to sentence him on Count Five based on 100 grams of heroin. This claim bears no relation to any of the claims asserted in Reiter's initial petition. It arises out of a different set of facts and is different in both time and type. Accordingly, it is time-barred.

  In addition, this is not the type of claim cognizable under Section 2255, because it does not allege "a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes `a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (citation omitted). The Second Amendment to the Petition is therefore dismissed.

  B. Reiter's Original Claims Should Be Dismissed

  Turning to the claims asserted by Reiter in his original petition, as amplified by his later submissions, the essence appears to be that William "Billy" Battista was an FBI informant during the 1982-83 period, that Battista was being debriefed by an FBI agent concerning Reiter during that period, that Battista never mentioned having accompanied Reiter to a hotel room in midtown for a discussion with Romero and James Jackson about killing Beverly and Steven Ash, that Battista would have mentioned such a meeting had it occurred, that the absence of any such mention in the debriefing reports was exculpatory because it undermined Jackson's testimony, that Battista further informed the FBI that Reiter was not in New York prior to 1982 and therefore could not have attended the hotel room meeting described by Jackson, that the Government suppressed those reports in violation of its Brady obligations, and that the Government "hid" Battista from the defense because his testimony would have impeached Jackson. Reiter further claimed that these matters and other exculpatory matters — including an alternative theory to Jackson's as to why the Ashes were murdered, i.e., that Beverly Ash was viewed as a possible witness against Reiter — were discussed during a court proceeding at which Reiter was not present, and that Reiter did not learn about them for two years. (Discussed already supra p. 8). Reiter contends that his trial counsel failed to learn about and investigate the alternative theory, and that his appellate counsel failed to assert a claim that the Government had violated its Brady obligations. Reiter asserts that he has repeatedly sought under FOIA and the Privacy Act the reports that would support these claims, but that the records have not been provided.

  Reiter's claims are meritless for a wide variety of reasons. First, if in fact there was no hotel room meeting in 1982 at which Reiter directed the murders of Beverly and Steven Ash, then Reiter did not need FBI 302's or other reports of debriefings of Battista to know that if he called Battista as a defense witness, Batista would deny that such a meeting had occurred since Reiter — according to him — knew perfectly well what Battista would say about whether any such meeting had occurred, the Government cannot be accused of having suppressed that information under Brady. Similarly, if Reiter was not in New York during late 1982 and Battista had knowledge of his whereabouts, he did not need to be informed of those facts through FBI debriefing reports of Battista. See United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995) ("evidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of that evidence" (quotations omitted)); United States v. Middlemiss, 217 F.3d 112, 123 (2d Cir. 2000) ("Because defendants already were aware of the allegedly exculpatory evidence, they suffered no Brady violation"); United States v. Zagari, 111 F.3d 307, 320 (2d Cir. 1997) ("Brady cannot be violated if the defendants had actual knowledge of the relevant information").

  Second, as Reiter concedes, the essential facts he says were "suppressed" by the Government were in fact all revealed at a hearing during the trial held by the Court at the request of counsel for codefendant Raymond Clark on August 1, 1988. Specifically, on that day, Special Agent Patrick Colgan testified that he was Battista's FBI supervisor, and that Battista never disclosed to him any information about Reiter's participation in a homicide. (Tr. 7977-78). Thus, these facts were part of the public record, and therefore could not have been "suppressed" within the meaning of Brady. A copy of the transcript of that hearing is attached hereto as Exhibit D to the Government's papers on this motion. Even if it is true that Reiter did not familiarize himself with this portion of the transcript until two years later, his inattention to the matter does not make out a Brady violation against the Government.

  Third, the record makes plain that the Government did not "hide" Battista from the defense, but that Battista had become a fugitive after it was revealed that he was an informant for the FBI. (Tr. 7572-73). Reiter and his counsel knew this because they were present in court when this testimony was elicited from FBI Special Agent Noone. Furthermore, Mr. Slotnick informed the Court that the FBI had revealed Battista's informant status during a trial in the Eastern District of New York, that he "had the whole file," and that Battista was — at the time of the trial — living "in Mexico someplace." (Tr. 7520-21). Fourth, copies of FBI debriefing reports that are currently in the possession of the United States Attorney's Office were provided separately for the in camera review which I made and have sealed for appellate review.*fn7 These reports do not support Reiter's claim that had Battista been available, he would have testified that Reiter was not in New York in late 1982 when the hotel meeting took place.

  Fifth, as the FBI agents and defense counsel made clear to the Court at trial, Battista was not available to testify for either party at trial. Had Reiter's attorney sought to impeach Jackson by calling Special Agent Colgan to testify about Battista's debriefings, counsel presumably would have opened the door to all of the information provided by Battista that corroborated Jackson's testimony about Reiter's large-scale involvement in heroin trafficking. Moreover, even had Agent Colgan testified that Battista never mentioned Reiter's participation in the homicides, Battista's failure to mention that meeting by no means established that the meeting never took place; indeed, given that Battista would have implicated himself in a murder conspiracy had he disclosed such a meeting to the FBI, his reticence would have been understandable. Under the circumstances, it could hardly be considered "ineffective assistance" for defense counsel to have declined to pursue such a strategy.

  Finally, the only "alternative theory" of a motive for the Ash murders mentioned by Reiter in his submissions is a theory that Beverly Ash was a possible witness against Reiter. (See 12/29/98 Supplement at 5). As an initial matter, this "alternative theory" could hardly be considered "exculpatory" of Reiter. To the contrary, this theory gives Reiter an even more direct motive to kill the Ashes than a theory that indirectly implicates the Ashes through the cooperation of Leroy "Nicky" Barnes. In any event, this "alternative" theory is not alternative at all; it is entirely consistent with Jackson's testimony that, at the hotel meeting, Reiter explained that Beverly and Steven Ash "could hurt us and hurt a lot of people," (Tr. 317-8) which a listener could have interpreted to be a reference to their possible cooperation. (Tr. 309).*fn8

  Accordingly, I cannot conclude that the Government suppressed exculpatory evidence concerning the Ash murders. Conversely I cannot find that trial counsel was ineffective for having failed to pursue additional evidence concerning William Battista. Nor, obviously, was appellate counsel ineffective for failing to assert a Brady violation on appeal. This claim is dismissed.

  C. Reiter's Claim Under Richardson Should Be Dismissed

  In Richardson v. United States, 526 U.S. 813 (1999), the Supreme Court ruled that in order for a defendant to be convicted under the CCE statute, 21 U.S.C. § 848, the jury must unanimously agree not only that defendant committed a continuing series of violations, but also about which specific "violations" make up that "continuing series." Because Reiter was tried before the rule in Richardson was announced, the jury in this case was not so instructed by the Court. The Court of Appeals has ruled that Richardson is to be applied retroactively on collateral review. Santana-Madera v. United States, 260 F.3d 133 (2d Cir. 2001). However, the Court of Appeals has also made plain that a harmless error analysis applies. Id. In Santana-Madera, the Second Circuit found harmless error where the trial court, prior to Richardson, had failed to instruct that the jury was required to agree unanimously as to which violations made up the "series" necessary for conviction under the CCE statute. However, the jury had simultaneously convicted the defendant of eight substantive narcotics offenses as well as a conspiracy to distribute narcotics. The Court held:
So, if the district court were clairvoyant and had given the jury the instruction required by Richardson, it is beyond cavil that the jurors would have unanimously agreed on three predicate violations of the drug laws. They unanimously agreed on nine such violations. The error here . . . is clearly harmless.
260 F.3d at 141.

  Precisely the same logic applies here. Reiter was convicted of two substantive heroin distribution violations (Counts Five and Six), as well as one count of using a telephone to facilitate narcotics trafficking. (Count Seven). Thus, had this Court instructed the jury, pursuant to Richardson, that it had to agree unanimously and beyond a reasonable doubt that Reiter had committed at least three narcotics violations, it clearly would have done so. Thus, the error was plainly harmless.*fn9 Reiter's Richardson claim is therefore dismissed. Conclusion

  Accordingly, for the forgoing reasons, Reiter's § 2255 petition is dismissed in its entirety.

  So ordered. EXHIBIT A

 [EDITORS' NOTE: EXHIBIT A IS ELECTRONICALLY NON-TRANSFERRABLE.] Reiter, Clark, Rollack, Dicks and Smith are serving their sentences.

  Statement of Facts

  A. The Government's Case

  1. Summary

  The proof at trial abundantly established that each of the five defendants participated in a racketeering enterprise headed by cooperating witness James Jackson, an enterprise that distributed vast quantities of heroin supplied by the continuing criminal enterprise supervised by defendant Mark Reiter. The Government proved that members of the racketeering enterprise distributed millions of dollars' worth of narcotics over a seven-year period in New York, Connecticut, Washington, D.C., and other locations on the East Coast, and committed more

   30 years' imprisonment on Count Eight to be followed by life-time special parole, and 30 years' imprisonment on Count Nine, to be followed by lifetime special parole. The sentences on Counts One and Nine are to run consecutively with each other; the sentences on Counts Four and Eight are to run concurrently with each other and consecutive to the sentence on Count Two; and the sentences as cumulated on Counts Two, Four, and Eight are to run concurrently with the sentences as cumulated on Counts One and Nine.

   Dicks was sentenced to 15 years' imprisonment on each of Counts One and Two to run concurrently with each other but consecutive to the 10-year prison term imposed on him in the District of Connecticut. Dicks was also fined $100,000 on each of Counts One and Two, those fines to run concurrently. Smith was sentenced to 20 years' imprisonment on Count One, 15 years' imprisonment on Count Eleven, to be followed by lifetime special parole, and 15 years' imprisonment on Count Twelve, to be followed by lifetime special parole, those sentences to run consecutively. On each of Counts Two and Four, Judge Owen sentenced Smith to 20 years' imprisonment, to run concurrently with each other and with the sentence on Count One. than a dozen murders to protect and promote their enterprise. In particular, the Government proved that one or more of the defendants on trial were responsible for at least seven murders and two attempted murders, including one murder in which the victim's throat was slit with a straight-edged razor, after the victim had been tortured in an effort to obtain information from him.

   Each defendant played an important role in the activities of the racketeering enterprise. Defendant Mark Reiter provided the Jackson organization with its supply of pure heroin and ordered the organization to commit the murders of Beverly Ash and Steven Ash. Although Jackson purchased approximately 45 kilograms of pure heroin worth more than 10 million dollars from Reiter, the evidence also showed that Reiter was a major supplier of heroin to others, including Peter Monsanto, Mitchell Jackson, Warren Tyson, Alan Morris, and Joseph Hayden, a/k/a "Jazz." Defendant Raymond Clark acted as the "enforcer" for the Jackson organization and shot to death at least three of the enterprise's victims. Defendant Timothy Smith distributed sizeable quantities of the organization's heroin and participated in the murders or attempted murders of six men. Defendant Leonard Rollack also distributed the enterprise's drugs and directed the murder of a rival drug dealer. Finally, defendant Alfred Dicks was one of the two largest wholesale customers of the Jackson organization's heroin and provided storage facilities for the enterprise's arsenal of weapons used in a premeditated shootout in Bridgeport, Connecticut.

   The Government's proof at trial consisted of 60 witnesses and more than 450 exhibits. Those witnesses included ...


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