The opinion of the court was delivered by: Korman, J.
In 1995, after a jury trial before Judge Weinstein, petitioner Jack Ferranti ("Ferranti") was convicted of arson homicide, arson conspiracy, sixteen counts of mail fraud and witness tampering. Mario Ferranti, his brother, was tried with him and was convicted of arson conspiracy. Jack Ferranti, the petitioner here, was sentenced to 435 months imprisonment, five years supervised release, restitution, fines and special assessments. In June 2005, Ferranti filed an application for an order certifying a second, or successive, habeas petition pursuant to 28 U.S.C. § 2255. The Second Circuit granted the application in part on July 13, 2005, holding that Ferranti had made a prima facie showing that he satisfied 28 U.S.C. § 2244(b) by submitting newly discovered evidence and remanded the case for a final determination whether Ferranti "has satisfied the requirements for filing" a successive petition. Ferranti v. United States, 99-cv-2332 (2d Cir. July 13, 2005).
Jack Ferranti owned and operated two retail clothing stores named "Today's Styles" located at 66-45 Grand Avenue, Maspeth, Queens, and 104-08 Metropolitan Avenue, Forest Hills, Queens. The store located on Grand Avenue in Maspeth occupied the first floor of a three-story building. The two upper floors consisted of four occupied residential apartments that housed eight people. (Trial Tr. 240.) Ferranti rented the store from Ripley Enterprises, a real estate management company, pursuant to a five-year lease running from February 1990 to February 1995. Under the lease terms, the rent payable increased in each year of the five-year term.
In the fall of 1991, Today's Styles was unprofitable. Due to construction on a bridge on the Long Island Expressway, which abutted the store, sales had declined substantially. (Id. at 343.) There were days when there were no sales at all, and even on the other days, store revenues were minimal. (Id. at 343, 354-358.) At times, the money in the cash box held in the store was insufficient to pay the weekly salary of one of Ferranti's employees. Ferranti offered to sell the store to another of his employees, but she declined because "business was bad." (Id. at 344.) Ferranti had fallen behind in his rent, failing to make payments in December 1991 and January 1992. (Id. at 251-52.) A check issued to Ripley Enterprises dated January 20, 1992 bounced. (Id. at 252-53.) The store's fire insurance premiums had not been paid, and a notice of cancellation had been sent to Ferranti on January 14, 1992. (Id. at 801-2.) On January 28, 1992, the fire insurance policy, which covered up to $200,000 in fire damage to the store's inventory, was reinstated. (Id. at 802.) Notably, Ferranti did not have fire insurance coverage on the other Today's Styles store in Forest Hills. (Id. at 806-7.)
On the night of February 24, 1992, only twenty-seven days after Ferranti renewed his fire insurance, a witness observed smoke billowing out of the building and called 9-1-1. The building soon became engulfed in flames, and the tenants in the upper-floor apartments fled for safety, in some cases wearing next to nothing. Firefighters had to force the doors to the store in order to enter the building, as the doors were locked. (Id. at 78.) Two firefighters, Lieutenant Thomas A. Williams and Michael J. Milner, searched the front portion of the second floor, where another store was located, (id. at 211) for any tenants remaining in the building. Visibility on the second floor dropped dramatically, and Milner-following standard procedure-broke a showcase window to attempt to vent some of the smoke. (Id. at 145-46.) Lieutenant Williams called for a "May Day," and Milner yelled for help out of the broken window, but no help was forthcoming. (Id. at 147, 48.) Milner crouched by the window and saw a "shadow" pass by him. (Id. at 148.) The shadow was Lieutenant Williams, who had fallen out of the window and who died instantaneously. (Id. at 148-49.) In addition to the tragic death of Lieutenant Williams, two dozen firefighters received minor injuries and several tenants had to be treated for smoke inhalation. United States v. Ferranti (Ferranti I), 928 F. Supp. 206, 210 (E.D.N.Y. 1996). The fire completely destroyed the building and all of the tenants' possessions stored inside.
After fleeing the building, tenants Shelly and Michelle Anthony briefly conversed with a man who inquired whether all of the tenants had managed to escape the building. (Trial Tr. at 708.) Shelly Anthony, a New York City Police Officer, later identified the man from a photograph array as Thomas Tocco, one of Ferranti's co-defendants. (Id. at 743.) Michelle Anthony selected two photographs from the array, one of which depicted Tocco. (Id. at 758-59.) Moreover, Beverly Danielius, who was visiting her mother-in-law in Maspeth, observed Tocco's dark Cadillac parked at a strange angle on Grand Avenue prior to the fire. (Id. at 690.) Minutes after Danielius's husband noticed smoke coming out of 66-45 Grand Avenue and called 9-1-1, Danielius saw that the dark Cadillac was gone. (Id. at 693.)
The next morning, fire marshals quickly suspected that the fire was a result of arson. Investigators noticed two distinct burn patterns located in the back of the store by the dressing room area. Former Chief Fire Marshal John Stickevers and Supervising Fire Marshal James Kelty concluded, as they later testified, that the burn patterns were evidence of two puddles of flammable liquid accelerants that were used to start the fire. (Id. at 1379-81, 1521-24.) Investigators took samples of the floor near the burn patterns and a rug. The rug samples were tested and found negative for accelerants-a result that was inconclusive because large amounts of water (such as that used to extinguish a fire) may wash away traces of accelerants.*fn1 (Id. at 2000, 2008-09, 2045-46.) Investigators also found a portable electric heater plugged into the wall between the two burn patterns. (Id. at 1376-79.) Subsequent testing conducted by Special Agent William Tobin of the FBI determined that the device had not been energized at the time of the fire, and therefore, was not the cause. (Id. at 1079-80.) Consequently, investigators concluded that the heater was placed between the two pools of liquid accelerant as a decoy. (Id. at 1380-83.)
Moreover, investigators, firefighters, and insurance adjusters who observed the store shortly after the fire did not find any debris left from burned clothing, (id. at 100, 862, 1375) although employees had observed a full stock of inventory in the days before (id. at 360). As the insurance adjuster later testified, it was implausible that the clothing simply "disintegrated" (id. at 863) and, if there had been clothing in the store at the time of the fire, "there should have been something left there," (id. at 865). Instead, there were "no hangers, nothing there." (Id.)
II. Investigation Subsequent to the Fire
The investigation immediately focused on Ferranti, but he was not located until a number of days after the fire. Once contacted, Ferranti falsely told the investigators that, on the date of the fire, he was visiting a girlfriend in New Jersey, although he was unwilling to provide her name. (Id. at 510.) Since his alibi was fabricated, he also was unable to corroborate his story in any way. (Id.) In a subsequent deposition related to his insurance claim, Ferranti admitted that he had lied to investigators, but claimed that he invented the alibi at the advice of his attorney. (Id. at 1704.) At trial, the attorney testified that he advised Ferranti not to answer any investigators questions if they became too "personal," but stated that he did not tell Ferranti to affirmatively lie to the police or to concoct a false alibi. (Id. at 1730-32.)
Ferranti also lied about the financial condition of Today's Styles, telling police that the store was "doing well." (Id. at 512.) When asked about possible causes of the fire, Ferranti mentioned the space heater as well as electrical problems at the store. (Id. at 523.) Ferranti later visited the store with investigators and identified the location where the heater had been found even though the heater had already been removed by fire investigators. (Id. at 1263.) When questioned about the space heater, Ferranti falsely stated that Gina Esposito, one of his employees, had purchased the heater a number of years prior to the fire. (Id. at 1389-90.) At trial, Esposito denied that she had purchased the heater. (Id. at 1700-01.) Moreover, the space heater recovered from the scene of the fire was a General Electric model heater that had not been manufactured since the late 1960's. (Id. at 373.)
Investigators questioned Ferranti about various employees that had access to the store. With respect to Teresa Rodriguez, who was responsible for closing the store on the night of the fire, Ferranti lied to the investigators, telling them that he did not know where she lived. In fact, Rodriguez lived in one of his buildings, which was located near Ferranti's real estate management office. (Id. at 443.) Moreover, after investigators left, Ferranti contacted Rodriguez and instructed her to lie to investigators about the space heater. Specifically, he instructed her to tell investigators that she had seen a space heater in the store that morning, and to deny that she had seen him the morning after the fire (although she had), in an attempt to corroborate his false alibi. (Id. at 565, 570-72.) Rodriguez and her sister-in-law, Charito Tejada, then instructed Rodriguez's friend Betzida Aviles, who had been in the store the day of the fire, to inform the police that she had observed a space heater in the store that day. (Id. at 576, 660.)
Rodriguez initially did as Ferranti instructed and lied to the police. (Id. at 571.) However, during a later interview with investigators, Rodriguez recanted her earlier statement and admitted that she had lied. (Id. at 574.) When contacted, Aviles, showing more fortitude than Rodriguez, told police that she did not observe a space heater in the store. (Id. at 660.) Other employees also corroborated Aviles's statement. (Id. at 358-59.)
In the subsequent weeks, Ferranti filed a claim with his insurance company for inventory losses due to the fire. (Id. at 1589.) The insurance company engaged outside counsel to handle the investigation, and counsel corresponded a number of times with Ferranti. Ferranti was examined under oath on June 2, 1992, where the insurance company's counsel, Ferranti, and Ferranti's counsel were present. (Id. at 1604.) Subsequently, on July 2, 1992, Ferranti withdrew his insurance claim. (Id. at 1610.)
At trial, the prosecution called thirty witnesses, including several firefighters, fire investigators, police officers, employees of Today's Styles, insurance investigators and others. Those witnesses, whose testimony is summarized above, generally testified about the fire, Ferranti's motive for committing the arson (namely, the failing financial condition at the store), the subsequent investigation and Ferranti's obstructive conduct. The prosecution also called the Anthonys and Beverly Danielius, who established Tocco's presence at Today's Styles at the time of the fire, and Vincent Marziano, a convicted felon, who had agreed to cooperate in exchange for immunity for other offenses he had committed. At trial, Marziano testified about his friendship with Tocco as well as Mario Ferranti ("Mario")-Jack Ferranti's brother and also a co-defendant. (Id. at 943-44.) More specifically, Marziano testified that on the night of the arson, Tocco knocked at the window of Marziano's apartment in an agitated state. (Id. at 952.) Tocco informed Marziano that he had just set fire to a building in Queens for Ferranti. (Id. 951-53.) Approximately one week later, Marziano approached Mario Ferranti at a bar where Marziano worked and cautioned Mario Ferranti, whom Marziano considered to be a closer friend, that Tocco had confessed their crime to Marziano. (Id. at 954-56.) Mario Ferranti responded affirmatively with a nod. (Id.)
The prosecution also called Gina Esposito and her daughter, Lisa Ziccardi. Before the grand jury, Esposito had testified that prior to the fire Ferranti had suggested to her that his problems with the store would be solved because it was heavily insured. Esposito also testified that Ziccardi had informed her that Ferranti had said that he would set the store on fire if business continued to lag. This testimony was consistent with Ziccardi's initial sworn affidavit taken by investigators.
When called to the stand at trial, however, Esposito initially feigned memory loss about Ferranti's statements to her as well as the conversation between Ziccardi and Ferranti. (Id. at 344-48.) Ziccardi also denied any recollection of her conversation with Ferranti. (Id. at 331.) Judge Weinstein determined that Ziccardi was potentially subject to contempt, and assigned her counsel. (Id. at 339.) The next day, Judge Weinstein conducted a hearing outside of the presence of the jury. During the hearing, Fire Marshal Robert Thomson testified that Ziccardi hand wrote her sworn affidavit in her own words. (Id. at 404-05.) The prosecution also called Peter Mazziotti, an insurance investigator, who spoke to Esposito in the course of his investigation. Mazziotti testified that Esposito had informed him about the conversation between Ziccardi and Ferranti.
Special Agent Cindy Pell testified that she had spoken to Ziccardi after her testimony on the previous day, and Ziccardi told Pell that she was nervous because Ferranti was "sitting right there." (Id. at 464.) Agent Pell also testified that Esposito believed that Ferranti had firebombed a truck parked on her property the day before she was scheduled to testify before the grand jury. (Id. at 464-65.) Judge Weinstein determined that Ziccardi and Esposito's failures of recollection were the result of coercion by Ferranti, and that he had effectively procured their unavailability as witnesses. (Id. at 476.) Judge Weinstein then held that their prior sworn statements were admissible pursuant to Federal Rule of Evidence 803(5) if the witnesses continued to refuse to testify truthfully. (Id.)
The prosecution then recalled Ziccardi, who reluctantly acknowledged that she overheard Ferranti state an intention to do an "insurance job" on his store. (Id. 603-06.) Esposito, when recalled to the stand, testified in a manner consistent with her original grand jury testimony, namely that Ferranti had suggested to her that his problems with the store would be solved because it was heavily insured. (Id. at 613, 626.) Because the witnesses had truthfully testified, and were hence no longer unavailable, the prior statements were not admitted.
On the defense case, Ferranti called, inter alia, two expert witnesses who challenged the fire investigators' and marshals' determination that the fire was started as a result of arson. First, Thomas Klem, a consultant fire engineer who was formerly employed by the National Fire Protection Association, testified that the fire could have been caused by an electrical short circuit in the building, and that the two burn ...