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United States v. Persico

August 28, 2008


The opinion of the court was delivered by: Seybert, District Judge


Defendants Alphonse Persico ("Persico") and John DeRoss ("DeRoss") were found guilty by a jury on December 28, 2007 of three of the six counts contained in the Superseding Indictment. Namely, Defendants were found guilty of the charges related to the murder of William Cutolo Sr. and witness tampering charges. They were found not guilty of the charges related to the shooting of Joseph Campanella. In addition to motions pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure, presently pending is a request by Defendants for an evidentiary hearing related to their Rule 33 motions. For the reasons discussed herein, Defendants' request for an evidentiary hearing is DENIED.


The following are facts relevant to the request for an evidentiary hearing.

On March 28, 2008, Defendants filed motions for judgments of acquittal pursuant to Federal Rule of Criminal Procedure 29. On April 21 and 28, 2008, Defendants filed letters, which the Court accepted as Defendants' motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. On May 7, 2008, the Court scheduled a hearing to address issues raised by Defendants' Rule 33 motion; namely: (1) that Defendants discovered, after the close of trial, that the government misrepresented William Cutolo Jr.'s availability as a witness; and (2) one, and possibly more, of the government's witnesses, namely Marguerite Cutolo and Agent Gary Pontecorvo, perjured themselves during the trial or, alternatively, the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed. 2d 104 (1972), by failing to turn over information regarding $1.65 million derived from illegal activities that Mrs. Cutolo was permitted to keep, tax free.

On June 16, 2008, the government, counsel for Defendants, and DeRoss appeared for the hearing.*fn1 The Court heard argument from counsel regarding the second issue raised by Defendants' Rule 33 motion, but no witnesses were produced, and the appearance was adjourned without date. Although the government essentially conceded that it knew about the $1.65 million that Mrs. Cutolo was permitted to keep without penalty, but failed to inform the defense, it argued that there was no Brady/Giglio violation because defense was able to make effective use of the information during trial and the information is immaterial. (Hr'g Tr. 7-9, June 30, 2008.) The government, however, was unable to provide the Court with any details as to who Mrs. Cutolo informed about the money or who, within the government, made the determination regarding forfeiture and taxes.

Ultimately, the Court directed the government to conduct a "search to see when, if there has been any notation and approval of" a process by which Mrs. Cutolo was permitted to keep the $1.65 million and to submit affidavits by June 30, 2008. (Hr'g Tr. 36.) The Court further advised that it would then determine "whether or not we will have a hearing with live witnesses, not have a hearing, and go on for oral argument on the Rule 29 and 33 motions." (Hr'g Tr. 38.)

On June 30, 2008, the government submitted an affidavit of Amy L. Walsh, Esq., a former Assistant United States Attorney, whom Mrs. Cutolo testified she informed about the $1.65 million. As Defendants correctly note, the Walsh Affidavit was vague and quite uninformative. Walsh affirmed that "[a]t some point at or around the time Marguerite Cutolo was relocated [late 2000 or early 2001], I became aware that Marguerite Cutolo had told the FBI that she was in possession of a large amount of cash found in the Cutolo home after the disappearance of William Cutolo, Sr." (Walsh Aff. ¶ 2.) "At some point later in 2001, the government decided to not seek forfeiture of, or taxes on, the funds referred to above." (Id. ¶ 4.) The Affidavit fails to provide much more information than the government provided to the Court at the June 16 appearance.

Subsequently, however, the government submitted, ex parte and under seal, additional documents to the Court, relating to the $1.65 million Mrs. Cutolo discovered after Cutolo Sr.'s disappearance.*fn2 (Docket Entry 690.) The Court received such documents on July 24, 2008 and conducted an in camera review.

Most recently, Defendants submitted additional materials in support of their Rule 33 motion for a new trial. Specifically, Defendants offer documents that were submitted to the Surrogate's Court, State of New York, County of Richmond, in an effort to obtain a declaration of death for Cutolo Sr. (Docket Entry 691.) Defendants' argue that these materials further demonstrate that Mrs. Cutolo did not previously tell the government about the $1.65 million as she testified or that the government assisted Mrs. Cutolo in suborning perjury in the Surrogate's Court proceeding. Defendants further contend that, in either event, the documents constitute Jencks Act material as well as Brady/Giglio material, which the government failed to produce.


At this point, the Court considers only whether Defendants are entitled to an evidentiary hearing with respect to issues brought to light by their Rule 33 motion.

The Court has discretion in determining whether to grant an evidentiary hearing in connection with a Rule 33 motion for a new trial. See United States v. Sasso, 59 F.3d 341, 351 (2d Cir. 1995) ("We will not reverse the denial of a new-trial motion or the refusal to conduct an evidentiary hearing absent an abuse of discretion."). Where the request for a new trial or evidentiary hearing is based on the allegation that there is "new evidence of perjury, 'a threshold inquiry is whether the evidence demonstrates that the witness in fact committed perjury.'" Id. (quoting United States v. White, 972 F.2d 16, 20 (2d Cir. 1992); see also United States v. Torres, 128 F.3d 38, 49 (2d Cir. 1997) ("Where the newly discovered evidence is the existence of allegedly perjured testimony, the defendant must first demonstrate that perjury was in fact committed."); United States v. Moore, 54 F.3d 92, 99 (2d Cir. 1995); United States v. Schlesinger, 438 F. Supp. 2d 76, 105-06 (E.D.N.Y. 2006). "A witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake, or faulty memory . . . . Once this threshold demonstration of perjury has been met, however, a new trial is not foreordained." United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001).

Defendants are unable, however, to satisfy this initial inquiry: that the witness in fact committed perjury. In fact, the evidence demonstrates that Mrs. Cutolo testified truthfully as to informing the government about the $1.65 million, and ...

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