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United States v. Basciano

March 24, 2008

UNITED STATES OF AMERICA,
v.
VINCENT BASCIANO, DEFENDANT.



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

MEMORANDUM & ORDER

Defendant Vincent Basciano ("Basciano" or "Defendant") was convicted by jury verdict before this court on July 31, 2007 of one count of racketeering, which included the racketeering acts of conspiracy to murder and murder of Frank Santoro ("Santoro"), solicitation to murder Dominick Martino ("Martino"), solicitation to murder Salvatore Vitale ("Vitale"), conspiracy to distribute marijuana, illegal gambling (lottery), and illegal gambling (sports betting); and the following additional substantive counts, to wit: illegal gambling (joker poker machines), conspiracy to distribute marijuana, illegal gambling (lottery), and illegal gambling (sports betting).*fn1

Currently before the court is Defendant's post-trial motion for a new trial based on three claims: (1) that the Government suppressed evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963), in that, shortly before testifying at trial, cooperating witness Dominick Cicale ("Cicale") solicited Witness Security ("Witsec") inmates to frame Basciano and a senior corrections officer in a bogus plot to murder Cicale; (2) the denial of Basciano's right to conflict-free counsel; and (3) this court's refusal to recuse itself subsequent to discovery of an alleged "hit list" admittedly in the Defendant's handwriting bearing my name, among others. Basciano also moves for an evidentiary hearing and for an order compelling discovery.

For the reasons set forth below, Defendant's motions are DENIED.

I. Fed. R. Crim. P. 33 Standard for a New Trial

Federal Rule of Criminal Procedure 33 provides that "upon the defendant's motion the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33. "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 1997). The Second Circuit has counseled that a district court should exercise such authority only "in the most extraordinary circumstances." United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993); United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992) (a district court should exercise its discretion to grant a new trial "sparingly").

The bases for the instant motions involve discrete issues, the facts relevant to which do not lend themselves to chronological presentation. Therefore, the background facts and legal discussion relevant to them are organized in accordance with the separate bases for Basciano's motion for a new trial.

A. The Cicale Allegations*fn2

On August 13, 2007, Marco Santomaggio ("Santomaggio"), a Metropolitan Correctional Center ("MCC") prison guard, informed Basciano's attorneys that, just prior to jury selection in Basciano's July 2007 retrial, Cicale solicited CW-1*fn3 to claim falsely that Basciano had asked CW-1 to kill Cicale on Basciano's behalf. On August 15, 2007, Basciano's counsel informed the court ex parte of this allegation. (See Defense Counsel's August 15, 2007 ex parte letter to the court.) On September 10, 2007, Basciano's attorneys filed a sworn affidavit from Santomaggio in which he attested that, on July 31, 2007, Supervisory Officer Regina Eldridge ("Eldridge") advised him that Cicale had propositioned inmate WI-1 "in a bogus murder solicitation plot that allegedly involved Vincent Basciano and [Santomaggio]." (Defendant's Memorandum in Support of Omnibus Post-Trial Motion for a New Trial, For an Evidentiary Hearing, and to Compel Discovery ("Def.'s Br.") (Docket Entry # 1049) at Ex. 1, Santomaggio Aff. ¶ 2.)

According to Santomaggio, Eldridge told him that when WI-1 informed her of the matter, she "took it to the people who needed to know about it," including the MCC's Security Investigative Services. Santomaggio also stated that Eldridge suggested he talk to WI-1 and a fellow inmate ("WI-2") to verify her information. (Id.) WI-1 informed Santomaggio that, in early July, Cicale had been "giving orders" to other Witsec inmates to create mischief in the unit, including "acts of murder sabotage, such as throwing water in the units [sic] cable box and pouring coffee all over the unit kitchen floor prior to inspection." (Id. ¶ 4.) WI-1 told Santomaggio that he had informed prosecutors of Cicale's bogus murder plan "soon after Basciano's conviction." (Id. ¶ 6.) Finally, WI-2 also informed Santomaggio that Cicale had solicited fellow inmates to claim that Santomaggio was involved in the murder plot. (Id. ¶ 3.)

Pursuant to an order of this court directing the Government to respond to the allegations, the Government stated that prosecutors had no knowledge of these allegations prior to August 17, 2007 when CW-1 relayed it to an Assistant United States Attorney ("AUSA"). (Government's September 26, 2007 letter to the court at 2.) The Government further stated that the U.S. Attorney's Office had determined that CW-1 did not inform any AUSA or anyone outside the MCC of the allegation prior to August 17, 2007. (Id.)

In connection with an earlier motion before this court, the Government submitted compelled statements of MCC personnel obtained by the Office of Internal Affairs of the Federal Bureau of Prisons ("OIA") during an investigation into alleged "inattention to duty" by MCC staff with respect to the Cicale allegations. (See Memorandum and Order granting Government's motion for protective order (Docket Entry # 1011) at 2-3.) The affidavits make clear that Bureau of Prisons ("BOP") Correctional Counselor Gloria Black ("Black") learned of the plot as early as June 11, 2007. (Black Aff. ¶ 3.) She then prepared a report and informed Eldridge of the allegation the next day. (Id. ¶¶ 2, 5; Eldridge Aff. ¶¶ 3-4.) Lieutenant Courtney Shepard ("Shepard") also received a copy of Black's memorandum but did not take action on it. (Shepard Aff. ¶¶ 3, 10.) However, as Defendant notes, there are inconsistencies in the affidavits as to, inter alia, whether Eldridge asked Shepard to interview CW-1 and another inmate and whether or not he did so, whether Shepard then provided a copy of the memorandum to his supervisor, Mary Wade-Jones ("Wade-Jones"), and when Wade-Jones in fact learned about the allegation.

(See Def.'s Mem. at 30-32.) In addition, Eldridge flatly denies telling Santomaggio anything about the murder plot and contends that Santomaggio lied in his affidavit. (See id.; Eldridge Aff. ¶¶ 9, 22-23.)

Subsequent to the revelation of the alleged plot, the Government has consistently represented to this court, and does so again in its opposition to the instant motions, that (1) CW-1 did not inform any AUSA of the Cicale allegations prior to August 17, 2007; (2) CW-1 did not inform anyone in the F.B.I. of the allegation prior to Aug 17, 2007; and (3) the only persons CW-1 informed about the allegation prior to August 17, 2007 were certain BOP personnel at the MCC who are responsible for guarding inmates. The Government adds that different F.B.I. squads are the responsible investigating agencies for CW-1 and Basciano and that CW-1 informed neither of these squads nor anyone else in the F.B.I. of the allegations. Further, the Government states that employees of the Special Investigative Services section of the MCC, who were informed of the allegation by BOP Protective Custody Unit employees, did not inform anyone outside MCC prior to Basciano's conviction. Finally, Ken Haas, the Unit Manager responsible for supervising the implementation of SAMs*fn4 in Unit 10 South, attests in an affidavit that he was not informed of the Cicale allegations and had no knowledge of the underlying facts surrounding the allegations prior to Basciano's conviction. (Govt's Br. at 20-21 & Exhs. B (MCC Staff Affs.), C (Haas Aff.).)

In order to warrant a new trial where the Government has failed to disclose evidence favorable to the defense, the defendant must show that the evidence is "material." Kyles v. Whitley, 514 U.S. 419, 434 (1995); see also United States v. Avellino, 136 F.3d 249, 256 (2d Cir. 1998) ("[i]f the government has failed to disclose to the defendant evidence favorable to him, relief is warranted only if the evidence was "material."). The "touchstone of materiality is a 'reasonable probability' of a different result," and the question for the court is whether, in the absence of the suppressed evidence, the defendant "received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A 'reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression undermines confidence in the outcome of the trial." Kyles, 514 U.S. at 434 (citation and internal quotation marks omitted). To make this determination, the court must look to "the cumulative effect of suppression in light of the evidence as a whole." United States v. Jackson, 345 F.3d 59, 73-74 (2d Cir. 2003) (internal citations and quotation marks omitted).

With regard to suppressed impeachment evidence specifically, "new impeachment evidence is not material, and thus a new trial is not required, when the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable. " United States v. Parkes, 497 F.3d 220, 233 (2d Cir. 2007). Further, "a new trial is generally not required when the testimony of the witness is corroborated by other testimony." Jackson, 345 F.3d at 74 (citation and internal quotation marks omitted); see also United States v. Orena, 145 F.3d 551, 558 (2d Cir. 1998) ("the existence of substantial ...


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