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DeCarlo v. United States

January 14, 2008

LETTERIO DECARLO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

On July 26, 2000, petitioner Letterio DeCarlo pled guilty to murder in the second degree, in violation of 18 U.S.C. § 924(j), and on May 16, 2001, I sentenced petitioner to 188 months imprisonment. Now before this Court is petitioner's (1) application for relief,*fn1 pursuant to 28 U.S.C. § 2255, on the grounds that (a) the government failed to disclose mitigating evidence relevant to both the indictment and sentencing, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and (b) he was denied effective assistance of counsel;*fn2 (2) motion for discovery, pursuant to Rule 6(a) of the Rules Governing § 2255 Proceedings;*fn3 (3) motion for an evidentiary hearing regarding his § 2255 claims; and (4) motion to appoint counsel.*fn4 For the reasons that follow petitioner's motions and petition are denied.

Background

After indictment on three counts of violation of federal law in relation to the killing of Frank Parasole, petitioner pleaded guilty to murder in the second degree in violation of 18 U.S.C. § 924(j)(1) on July 26, 2000. Pursuant to the plea agreement with the government, the remaining counts of the indictment*fn5 were dismissed and petitioner agreed not to challenge a two-point upward 'leadership role' adjustment to his Sentencing Guidelines calculation, pursuant to U.S.S.G. § 3B1.1(c).*fn6

According to the pre-sentence report, in 1997 petitioner recruited a number of construction workers to assault Parasole at location referred to as Club Duvo. When Parasole arrived they beat him. John Ferrisi, one of petitioner's accomplices, handed petitioner a gun, and petitioner shot Parasole in the buttocks. Parasole died shortly thereafter. At sentencing, petitioner received a two-level upward leadership role adjustment. This enhancement was based on my finding that petitioner directed others to be present to assist him at the confrontation that led to Parasole's death.

The Court of Appeals affirmed petitioner's sentence and the Supreme Court denied a writ of certiorari on March 31, 2003. See DeCarlo v. United States, 538 U.S. 955 (2003). Petitioner timely filed his petition for habeas review on March 29, 2004.

Discussion

Disclosure of Brady Material Undisclosed Audio Recordings

Petitioner alleges that the government failed to turn over to the defense material required to be disclosed under Brady v. Maryland, 373 U.S. 83 (1963). According to petitioner, the government failed to disclose audio recordings of conversations from early 2000 between cooperating witness Charles Trentacosta and Frank Fappiano, the head of a Gambino family 'crew' to which petitioner belonged.*fn7 According to petitioner, these recordings demonstrate that Trentacosta was in fact the leader of the assault on Parasole and also that petitioner was not acting in furtherance of Gambino family objectives but rather participated in the assault for personal reasons, in contravention of Gambino family rules.*fn8 In relevant part, the recordings are as follows:*fn9

TRENTACOSTA: So listen . . . that fucking guy [Parasole]. I warned him, next time . . . you're gonna be in trouble. You're going to the hospital.

FAPPIANO: That's why I said . . .

TRENTACOSTA: (VO) And you said, next time, Charlie do it . . .

FAPPIANO: No, no, no.

TRENTACOSTA: What then, then what did I do, misunderstood everything?

FAPPIANO: What I said, was, I told Lenny*fn10 to wait.

TRENTACOSTA: But who told fucking John to bring a fucking pistol? Or who told him to fucking do it?

FAPPIANO: I don't know, I wasn't here brother. I don't know.

TRENTACOSTA: It was over, the thing was fucking over. I didn't think the scum bag would do something like that. Listen, I don't care about that . . . listen to me.

FAPPIANO: . . . we gotta deal with the situation here (UI) . . . death penalty.

TRENTACOSTA: Why death penalty?

FAPPIANO: Why? Cause they were saying that he was tortured before he was killed.

TRENTACOSTA: . . . slapped around, it was nothing.

FAPPIANO: Oh yeah, ok well go tell it to ...


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