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United States v. Amato

June 27, 2006

UNITED STATES OF AMERICA,
v.
BALDASSARE AMATO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Garaufis, United States District Judge

MEMORANDUM & ORDER

On June 24, 2006, the Government moved to prevent the defense from calling witnesses to elicit prior inconsistent statements made by Government witnesses pursuant to Fed. R. Evid. 613(b). (Gov't Ltr. Br., dated June 24, 2006 ("Gov't Ltr. Br.").) Defendant Baldassare Amato ("Amato") intends to call Richard Cantarella, Frank Coppa, and James Tartaglione to impeach the testimony of cooperating witness Salvatore Vitale ("Vitale") (Amato Ltr., dated June 25, 2006 ("Amato Ltr."), at 2),*fn1 and defendant Anthony Basile ("Basile") seeks to call Federal Bureau of Investigation ("FBI") agents Greg Massa and Joseph Bonavolonta to impeach the testimony of cooperating witness Joseph D'Amico ("D'Amico"). (Basile Ltr., dated June 25, 2006 ("Basile Ltr."), at 4.) The Government objects to the production of these witnesses on the ground that the defendants intend to call them solely to elicit inadmissible hearsay, because the alleged statements are not inconsistent with D'Amico's and Vitale's trial testimony, Amato and Basile failed to afford D'Amico and Vitale with the opportunity to deny or explain the inconsistent statements, and Amato and Basile gave no notice of their intention to introduce extrinsic evidence during the testimony of Vitale and D'Amico. (Gov't Ltr. Br., at 3-4.) For the reasons set forth below, the Government's motion is GRANTED with respect to Amato and DENIED with respect to Basile.

I. FACTUAL BACKGROUND

At issue are allegedly prior inconsistent statements made by Government cooperating witnesses who testified in this trial regarding the alleged murder of Robert Perrino ("Perrino"). The Government alleges that Amato and Basile murdered Perrino in the furtherance of the Bonanno organized crime family. (Indictment ¶¶ 25-27.) On June 5, 2006, during the cross-examination by Diarmuid White, Amato's counsel, of Salvatore Vitale, a cooperating witness for the Government, Amato's counsel had the following colloquy with Vitale:

Q: Do you recall a meeting at a Hilton Hotel in Long Island just shortly before Perrino was killed?

A: I used to meet Richie [Cantarella] there.

Q: And did you ask him at that meeting whether Bobby Perrino was showing any signs of weakness?

A: No, I didn't have to. He volunteered that.

Q: Did he tell you in his opinion that Robert Perrino wasn't showing any signs of weakness?

A: He never said that.

Q: Did you tell Richie Cantarella that you wanted to kill Robert Perrino?

A: No. I says to Richie if he had a location in the city, and he knew what I meant by that. After he described the situation - after I discussed it with Spero.

Q: In he had a location -

A: If he had a location in the city where we could kill Bobby [Perrino]. But you're going into like third, fourth, fifth conversation. It wasn't all done in one conversation.

Q: You were not the one who suggested to him that Perrino be killed?

A: No. He suggested it to me. And Al Walker was suggesting it to Anthony Spero. . . . .

Q: Did you ever have that conversation with James Tartaglione where you said you were concerned that Robert Perrino would be cooperating, would cooperate because he was becoming religious, going to church, might become a priest, those type of things?

A: From my firsthand knowledge or from what I was told from another individual.

Q: From what you said to Mr. Tartaglione. Did you say that to Mr. Tartaglione?

A: I don't remember what I said to Mr. Tartaglione. (Transcript of the Trial Proceedings ("Tr."), at 538-39.) Later in the cross-examination, White had the following exchange with Vitale:

Q: Did you ever tell Richard Cantarella that Anthony Urso was going to pick up Perrino?

A: Not at all, sir.

Q: Pick up Perrino and bring him to the ...


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