The opinion of the court was delivered by: Ross, J.
Not for Print or Electronic Publication
Table of Contents......................................... 1
I. Introduction & Procedural Background ................ 3
II. Petitioner's Trial .................................. 8
A. Background .......................................... 8
B. Evidence Adduced at Trial ........................... 9
1. Petitioner's Position within the Colombo Family ... 9
2. The Murder of Anthony Coluccio ................... 10
3. Conspiracy to Murder Members of the Orena Faction 13
4. Loansharking Conspiracy .......................... 22
III. The DeVecchio and Scarpa Scandal ................... 26
A. Scarpa's Criminal Activities ....................... 28
B. Scarpa's Cooperation with Law Enforcement .......... 30
C. DeVecchio's Misconduct ............................. 31
D. Discovery and Disclosure of Scarpa and DeVecchio Information ................................................. 33
IV. Law Applicable to Petitioner's Post-Conviction Motions 44
A. Rule 33 ............................................ 44
B. Section 2255 ....................................... 45
V. Timeliness of Petitioner's Post-Conviction Submissions 46
A. Timeliness of Petitioner's Rule 33 Motion .......... 46
B. Timeliness of Petitioner's Section 2255 Petition ... 50
VI. Claims Common to Petitioner's Rule 33 Motion and Section 2255 Petition......................................... 58
A. Newly Discovered Evidence/Brady Violations ......... 58
1. The New York City Police Department Reports ...... 60
2. The Scarpa/DeVecchio Information ................. 71
3. Various Undisclosed Evidence ..................... 92
B. The Government's Outrageous Conduct ................ 93
VII. Section 2255 Claims ............................... 103
A. DeVecchio's Perjured Testimony .................... 103
B. Linda Mae Kemble's Testimony ...................... 110
C. Jury Selection .................................... 114
D. Improper Jury Instructions ........................ 118
E. Improper Sentence ................................. 120
F. Elements of Loansharking .......................... 121
G. Ineffective Assistance of Trial Counsel ........... 125
H. Ineffective Assistance of Appellate Counsel ....... 135
VIII. The Requested Evidentiary Hearing ................. 138
IX. Petitioner's Motion to Remove Counsel and Appoint Substitute Counsel........................................... 143
X. Petitioner's Motion to Appoint a Special Prosecutor 147
XI. Conclusion ........................................ 150
I. Introduction & Procedural Background
On November 12, 1992, following a two week jury trial before the Honorable Jack B. Weinstein, petitioner Michael Sessa was convicted of: (1) participating in the conduct of the Colombo organized crime family of La Cosa Nostra (the "Colombo Family") through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c) ("Count One"); (2) conspiring to participate in the conduct of the Colombo Family through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d) ("Count Two"); (3) conspiring to murder Anthony Coluccio ("Coluccio"), a Colombo Family associate, in violation of 18 U.S.C. § 1959(a)(5) ("Count Three"); (4) murdering Coluccio in violation of 18 U.S.C. § 1959(a)(1) ("Count Four"); (5) conspiring to murder those members of the Colombo Family loyal to Victor Orena (the "Orena Faction") in violation of 18 U.S.C. § 1959(a)(5) ("Count Five"); (6) conspiring to make extortionate extensions of credit in violation of 18 U.S.C. § 892 ("Count Six"); (7) conspiring to make extortionate collections of credit in violation of 18 U.S.C. § 894 ("Count Seven"); and (8) using and carrying a firearm in connection with crimes of violence, specifically Counts Three, Four, and Five, in violation of 18 U.S.C. § 924(c)(1) ("Count Eight").
On May 24, 1993, Judge Weinstein sentenced petitioner to a term of life imprisonment on Count One, a term of life imprisonment on Count Two, a ten-year term of imprisonment on Count Three, a term of life imprisonment on Count Four, a ten-year term of imprisonment on Count Five, a twenty-year term of imprisonment on Count Six and a twenty-year term of imprisonment on Count Seven. The terms of imprisonment on Counts One through Seven were to run concurrently. Additionally, Judge Weinstein sentenced petitioner to a consecutive five-year term of imprisonment on Count Eight, pursuant to 18 U.S.C. § 924(c). Judge Weinstein imposed cumulative fines in the amount of $250,000 per count, in the total amount of $2,000,000, and ordered petitioner to pay for the costs of his own imprisonment at the rate of $1,492 per month, as well as a special assessment of fifty dollars per count, for a total special assessment of $400.
On June 2, 1993, petitioner filed a Notice of Appeal with the United States Court of Appeals for the Second Circuit, asserting the following claims: (1) Counts One and Two failed to state an offense because the Colombo Family war negated the enterprise element of the racketeering charges; (2) the government elicited inadmissible and prejudicial evidence concerning prior conduct and other crimes at trial; (3) Judge Weinstein improperly "sequestered" the jury; (4) Judge Weinstein improperly prohibited petitioner's counsel from eliciting expert character evidence concerning a government witness's propensity for untruthfulness; (5) the government improperly withheld various tape recordings; (6) the prosecutor improperly argued during his summation that petitioner placed individuals strategically in the courtroom to intimidate a witness; (7) a magistrate judge improperly conducted the jury selection; and (8) Judge Weinstein improperly sentenced petitioner based upon the history of organized crime and the criminality of others. Petitioner also filed a supplemental brief entitling his supplemental ground on appeal as "Trial Counsel was Ineffective," but arguing that testimony of a cooperating government witness, Joseph Ambrosino, contained improper hearsay and that the jury instructions concerning the government's burden of proof were constitutionally deficient. (Corrected Copy of Petitioner's Brief on Appeal at 87.) By Mandate issued on October 13, 1994, the Second Circuit affirmed petitioner's conviction in all respects. United States v. Sessa, 41 F.3d 1501 (2d Cir. 1994) (table). Petitioner did not file a writ of certiorari to the Supreme Court.
On October 11, 1996,*fn1 petitioner filed his motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure (the "Rule 33 Motion") arguing, inter alia, that he is entitled to a new trial on the basis of newly discovered evidence allegedly suppressed by the government at his trial. The government opposed the Rule 33 Motion on March 2, 1999.
On April 22, 1997, petitioner filed a petition ("Petition") for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 ("Section 2255"). The government opposed the Petition on June 2, 1997, but after petitioner failed to reply or otherwise move the proceeding forward, on March 15, 2001, Judge Weinstein dismissed the habeas case, and denied any pending motions in the criminal case, for failure to prosecute. (Sessa v. United States of America, 97-CV-2097 ("Habeas Docket") No. 45.).
On July 31, 2001, because neither petitioner nor his counsel was warned that the Petition would be dismissed for failure to prosecute, Judge Weinstein reinstated the habeas case and the Rule 33 motion. On June 24, 2002, Judge Weinstein recused himself from petitioner's habeas case and underlying criminal case, and both cases were transferred to the Honorable David G. Trager. Several years and substitutions of attorneys later, on March 16, 2009, petitioner filed a document entitled "First PETITION for Writ of Habeas Corpus."*fn2 (Habeas Docket No. 45.) The Amended Petition has been fully briefed since July 1, 2010. On January 11, 2011, the habeas case and criminal case were transferred to the undersigned.
Currently pending in petitioner's cases are the following:
(1) a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, filed on October 11, 1996, and amended on November 20, 1996 ("Rule 33 Motion"); (2) the Petition for a writ of habeas corpus pursuant to Section 2255, filed on April 22, 1997, and amended on March 16, 2009; (3) a motion for a writ of mandamus ordering the attorney general to appoint a special prosecutor, filed on May 27, 2009; (4) a motion for an evidentiary hearing, filed on July 28, 2010; and (5) a motion to remove counsel of record and appoint new counsel pursuant to the Criminal Justice Act (the "CJA"), 18 U.S.C. § 3006a, filed on August 8, 2010.
The charges against petitioner arose primarily as a result of his involvement with the Colombo Family of La Cosa Nostra in the Eastern District of New York. (Superseding Indictment ("Sup. Ind.") at ¶ 1.)*fn3 La Cosa Nostra, "also known as the Mafia, includes five New York families, the Bonnano, Colombo, Gambino, Genovese, and Lucchese families, each headed by a boss." United States v. Orena, 32 F.3d 704, 708 (2d Cir. 1994). In the 1980s, the Colombo Family was controlled by its boss,*fn4 Carmine "Junior" or "the Snake" Persico, and its underboss,*fn5 Gennaro "Gerry Lang" Langella. (TT at 93:24-25; 94:8-12; 95:2.)
However, between November 1986 and January 1987, both Persico and Langella were sentenced to "lengthy terms of imprisonment" and subsequently, a rift between two factions of the Colombo Family, those loyal to the incarcerated "Boss" Carmine Persico (the "Persico Faction"), and those loyal to the "Acting Boss*fn6 "
Victor J. Orena (the "Orena Faction"), led to a violent internal war for control of the Family. (Sup. Ind. at ¶¶ 22, 23.) Each faction formed "hit teams" to monitor the movements of the opposing faction with the purpose of assassinating its members and associates. (Sup. Ind. at ¶ 23.) Petitioner was aligned with the Persico Faction, led by his brother, Carmine Sessa. (Sup. Ind. at ¶ 23.)
B. Evidence Adduced at Trial
1. Petitioner's Position within the Colombo Family At trial, the government offered the testimony of Joseph Ambrosino, a cooperating witness and former associate of the Colombo Family. Ambrosino testified that petitioner became a "made member*fn7 " of the Colombo Family in approximately December 1988. (TT at 189-6-8; 202:4-7.) In 1991, petitioner was promoted to acting captain*fn8 for Robert Zambardi, who was facing a parole violation charge at that time, and acted as the head of a crew that included as members Ambrosino, Larry Fiorenza, Richie Brady, Mike DeMatteo, Louie "Ganoli," Carmine Imbriale,*fn9 Michael Bulino, Anthony Coluccio, Frankie "Steel" Pontillo and Anthony "the Arab" Sayegh. (TT at 189:23-190:11; 203:14-204:17.) During the Colombo Family war, petitioner and his crew aligned themselves with the Persico Faction. (TT at 204:11-12.) Petitioner was involved in and directed the various criminal activities carried out by his crew, including, inter alia, "loansharking, murder, attempted murders," the trade of illegal firearms, and the use of fraudulent credit cards. (TT at 183:20-21; 207:19; 262:2-12; 672:10-14; 676:13-16.)
2. The Murder of Anthony Coluccio
Anthony "Bird" Coluccio, an associate of the Colombo Family, and a member of petitioner's crew, was murdered in May 1989. (TT at 219:20-220:1). As part of petitioner's crew, Coluccio primarily conducted loansharking activities, but he had also "done some work with [petitioner's brother and Colombo Family consiglieri*fn10 Carmine Sessa] and [petitioner], meaning murders." (TT at 221:9-10.) During the several months prior to his murder, Colluccio "was dealing drugs, was taking drugs, was committing robberies, [and] was doing stupid things." (TT at 220:20-21.) In the winter of 1989, he was arrested with his brother for possession of drugs while on his way to Atlantic City, New Jersey. (TT at 918:7-10.) During a meeting between petitioner, Imbriale, Coluccio's wife, and Michael Bullino, a Colombo Family associate, petitioner learned of Coluccio's arrest, and remarked that "Bird is up to his old shit again." (TT at 920:8.)
Fearing that, if arrested again, Coluccio would cooperate with authorities, Carmine Sessa instructed petitioner and Ambrosino to "kill [Coluccio] in the car and dump him off on Third Avenue under the highway where the Puerto Ricans hang out, in a drug infested neighborhood; let everybody think that the drug dealers killed him." (TT at 221:18-21.) Several weeks later, on May 15, petitioner called Ambrosino and instructed him to meet petitioner to begin looking for Coluccio that night. (TT at 222:10-13.) Petitioner, Ambrosino, and Hank Smurra, a made member of the Colombo Family, searched for Coluccio at his regular hangouts to no avail, and abandoned their search at 1:00 a.m. (TT at 222:14-17.) They searched again the next night, but still were unable to locate Coluccio. (TT at 222:18-20.)
The next day, petitioner and Ambrosino were at their usual meeting place on the corner of 13th Avenue and 69th Street at approximately 3:00 p.m., when Coluccio arrived with Sayegh and Billy, a Columbo Family associate. (TT at 222:23-323:1; 223:11.) Petitioner instructed Coluccio to return to the meeting place at 8:00 p.m. (TT at 223:6-7.) While waiting for Coluccio that evening, Ambrosino suggested to petitioner that they take Coluccio to Staten Island instead of leaving his body in Brooklyn. (TT at 772:21-773:12.) Petitioner agreed with Ambrosino, believing that downtown Brooklyn was too crowded and busy for them to carry out their plan. (TT at 773:10-12.)
When Coluccio arrived at approximately 8:00 p.m., Ambrosino told Coluccio that his "wife was having a problem with a neighbor and [they] had to go to Staten Island to take care of the neighbor." (TT at 223:14-16.) As Coluccio's right arm was in a sling, petitioner instructed Coluccio to move to the passenger seat and allow Ambrosino to drive, and petitioner sat in the back seat on the passenger side. (TT at 223:18-24; 224:2.) Ambrosino drove towards Staten Island, followed by Smurra in his own vehicle. (TT at 223:18-21; 224:15-18.) When they were several blocks from Ambrosino's home, petitioner shot Coluccio three times in the back of the head. (TT at 225: 1-10.) Ambrosino pulled the vehicle over to the right side of the road where he cleaned the steering wheel with his jacket, and petitioner cleaned the door. (TT at 225: 15-17.) They walked to Smurra's vehicle, approximately one block away, and drove towards Rockland Avenue, making several turns along the way. (TT at 226:11-12.) Petitioner threw the gun into a storm drain on Rockland Avenue, where an agent from the Federal Bureau of Investigation ("FBI") recovered the weapon more than two years later. (TT at 794-96.)
3. Conspiracy to Murder Members of the Orena Faction
In June 1991, petitioner conspired with Carmine Sessa, Ambrosino, Joseph "Lefty" Sangeorgio, an acting captain with the Colombo Family, and other Colombo Family soldiers and associates to murder members of the rival Orena Faction, including Colombo Family acting boss Victor Orena and acting underboss Joseph Scopo. On June 20, 1991, Carmine Sessa received information that the Orena Faction was planning to assassinate him the next day, after he took part in a ceremony inducting several associates into the Colombo Family. (TT at 239:5-29.) Accordingly, the Persico faction planned to murder both Scopo and Orena that evening: Scopo near a club he commonly frequented on Fourth Avenue in Brooklyn, and Orena near his home on Long Island. (TT at 240:6-10.)
That night, petitioner waited at the Nebraska Diner in Coney Island, Brooklyn, with Ambrosino and others, while Smurra determined whether Scopo was at the club. (TT at 241:11-18; 242:11-13.) Smurra returned to the diner to report that Scopo was not at the club, and petitioner and Ambrosino then drove to Scopo's home in Mill Basin, Brooklyn, and saw Scopo's vehicle in the driveway. (TT at 242:1-5.) They returned to the diner and learned that Carmine Sessa's group targeting Orena on Long Island had been unsuccessful as well. (TT at 243:12-16.) "[S]uspecting that something might break out the following day," petitioner and several others fled to a safehouse in New Jersey to hide from the Orena Faction. (TT at 245:7-246:4.)
Thereafter, a committee comprised of members of each New York City-based La Cosa Nostra family successfully mediated a truce between the Orena and Persico Factions. (TT at 249:23-250:4.) However, in October 1991, four or five members of the Orena Faction opened fire at Gregory Scarpa, Sr. ("Scarpa") a made member of the Colombo Family aligned with the Persico Faction, thereby ending the truce. (TT at 254:11-255:5.) Scarpa survived, but several other Persico Faction members, including Smurra, were shot and killed in subsequent days. (TT at 255:13-20.)
Believing that Billy Cutolo, a captain in the Colombo Family aligned with the Orena Faction, and his crew attacked Scarpa, the Persico Faction began hunting him. (TT at 256:1-7.) In November 1991, petitioner and several members of his crew, including Ambrosino, met at Robert Montano's home in Staten Island to plan Cutolo's murder. (TT at 256:11-257:25.) They planned to drive to Cutolo's girlfriend's home off of Richmond Hill Road in Staten Island, where Cutolo had recently been seen with a group of approximately ten Orena Feaction members, and "try to grab him, try to shoot him, kill him." (TT at 259:3-23.) However, by the time petitioner, Ambrosino, and the other Persico Faction members arrived at Cutolo's girlfriend's home, each carrying a gun, Cutolo had already left. (TT at 260:5-19.) Accordingly, the group abandoned their plan and agreed to meet the following Friday. (TT at 21-25.)
The Perisco Faction next planned to murder Cutolo on Thanksgiving Day. (TT at 262:13-18.) Ambrosino testified that he, petitioner, and Fiorenza "were going to dress up as Hasidic Jews in costumes and murder [Cutolo] in front of his girlfriend's grandmother's home in Brooklyn, [at] 60th Street and 13th Avenue." (TT at 262:20-22; 263:18-19.) As the "neighborhood that [Cutolo] was going to was an Hasidic neighborhood, [petitioner, Ambrosino and Fiorenza] figured [they] could blend in with the crowd." (TT at 262:25-263:1.) Petitioner instructed Ambrosino to give six hundred dollars to Sayegh so that he could purchase costumes from a store in Brooklyn, and the costumes were stored at Fiorenza's girlfriend's home, where she testified to seeing them. (TT at 264:2-9, 859-62.) See also Government Exhibit ("Gov. Ex.") 101.T at 8 (Ambrosino informing Frank Pontillo that they had mustaches, beards, and other facial hair "from the Jewish (UI) . . . in Larry's house" and that they "were gonna [sic] use that for Thanksgiving on Billy"). However, on Thanksgiving morning, a New York Post article implicated Scarpa as a government informant, and fearing that Scarpa "knew about the plan and if he was cooperating he would tell the law what [they] were going to do," petitioner called off the murder. (TT at 265:13-266:5.)
In November 1991, petitioner, Carmine Sessa, Ambrosino, and others made another attempt to murder Orena and Scopo. (TT at 268:22-270:2; 289:14-19.) Carmine Sessa "beeped" both petitioner and Ambrosino, and informed them that Orena, Scopo, and Tommy Petrizzo, a Colombo Family captain aligned with the Orena Faction, had been spotted on the corner of 101st Avenue in Ozone Park, Brooklyn. (TT at 268:22-270:2; 289:21-290:16.)
Carmine Sessa instructed petitioner, Ambrosino, and others to convene at a diner in Rockaway Park, Brooklyn, before heading to Ozone Park, but by the time they arrived, Orena and Petrizzo had left. (TT at 268:22-270:2; 290:21-23; 293:21-24) Moreover, by that time, Scopo was playing cards at a club with members of the Gambino crime family. (TT at 270:10-25; 294:9-10) Not wishing to accidentally shoot members of another crime family, Carmine Sessa and petitioner called off the "hit." (TT at 270:20-25; 294:12-15.)
In approximately November or December 1991, petitioner, Ambrosino, Imbriale and other Persico Faction members attempted to murder Michael "Spat" Spataro, a Colombo Family associate aligned with the Orena Faction, and a member of Cutolo's crew. (TT at 301:22-303:4.) They met at a pizzeria off of Amboy Road and Huguenot Avenue in Staten Island before driving to Spataro's home on Amboy Avenue. (TT at 302:18-24.) Carrying loaded weapons, petitioner and the group drove past Spataro's home in a white rental car. (TT at 203:2-12; 305:17.) Upon discovering that Spataro was not at home, they drove up and down Amboy Avenue for approximately ninety minutes, until they intercepted a police bulletin reporting a murder committed by men driving a similar white vehicle, and the group dispersed. (TT at 305:5-20.)
In January 1992, Carmine Sessa ordered petitioner, Ambrosino, and others to murder Frank "Frankie Notch" Iannaci, a Colombo Family associate aligned with the Orena Faction, and a member of Cutolo's crew. (TT at 295:14-25.) The group waited for Iannaci outside his apartment building in the Hamilton Houses on the corner of 101st Street and 4th Avenue in Brooklyn for approximately half an hour. (TT at 296:13-25.) When a Hamilton House security guard appeared, they left. (TT at 296:22-23.)
In the first several months of 1992, petitioner, Ambrosino, Imbriale, and other members of the Persico Faction set out to murder Joseph "Joe Campi" Campanella, a Colombo Family soldier aligned with the Orena Faction. (TT at 297:14-21; 298:8.) Initially, they targeted him at his home on Stillwell Avenue in Brooklyn, but when they did not see his vehicle in the driveway, they left. (TT at 298:11-299:6.) On another occasion, petitioner, Ambrosino and several others attempted to locate Campanella at his monument shop on 16th Avenue between 63rd Street and 64th Street in Brooklyn, but were similarly unsuccessful. (TT at 300:6-14.) Several additional attempts to locate Campanella at both locations failed. (TT at 300:15-17.)
In April 1992, petitioner, Ambrosino, Pontillo, DeMatteo and several others made the first of several attempts to murder "Bo Bo" Malpeso, a made member of the Colombo Family aligned with the Orena Faction. (TT at 312:4-22.) Upon learning that Malpeso's vehicle, a white Lincoln, was located outside a club on McDonald Avenue in Brooklyn, petitioner planned to meet Ambrosino, Pontillo, and the others on a nearby street corner. (TT at 313:2-8.) However, before petitioner arrived, Pontillo noticed a suspicious looking car, which the group believed belonged to the police or the FBI. (TT at 313:11-13.) They drove to a nearby auto mechanic shop on McDonald Avenue owned by an acquaintance, and left the two guns they had been carrying in their car at the shop, so as not to be stopped with them. (TT at 313:14-314:2.) The group headed back to the club on McDonald Avenue, but as the agents continued to follow the group, Ambrosino beeped petitioner and redirected him from the club to a Nissan dealership on Fourth Avenue and 62nd Street in Brooklyn. (TT at 314:2-17.)
Several days later, petitioner and the same group returned to the club on McDonald Avenue, and spotted a white Buick Century belonging to Malpeso's girlfriend. (TT at 315: 12-21.) Believing Malpeso was using his girlfriend's car, petitioner and the crew waited outside the club until 10:00 p.m. (TT at 315:24-316:15.) However, when the Buick pulled out of the club's driveway, Malpeso was not in the car. (TT at 316:15-17.) DeMatteo informed petitioner that Malpeso's girlfriend lived in Mill Basin, Brooklyn, and the group split into two cars, petitioner and Sayegh in one, and Ambrosino and others in another, and searched each block of Mill Basin for either Malpeso's Lincoln or his girlfriend's Buick. (TT at 317:17-318:17.) Ambrosino's group eventually located the Lincoln on 72nd Street near Avenue W, but petitioner had already left the neighborhood by that time. (TT at 319:3-11.)
The next day, petitioner formulated a plan to murder Malpeso near his girlfriend's home, and petitioner's crew kept her home under surveillance on several different occasions before spotting Malpeso. (TT at 319:20-320:9) Petitioner parked on 72nd Street and Avenue T with a pair of binoculars, and when Malpeso left the house, petitioner made a left turn with his headlights on to signal that Malpeso was headed towards the other vehicles. (TT at 321:3-16.) The three other cars, driven by Ambrosino and other members of petitioner's crew, attempted to block Malpeso's car, but due to a miscommunication and an unexpected turn by Malpeso, Ambrosino failed to stop and Malpeso drove away. (TT at 322:6-21.) Pontillo fired at Malpeso as he drove away, but only hit the back window of Malpeso's car. (TT at 322:22-323:18.) Petitioner was angry with Ambrosino for failing to stop, and no further attempts were made on Malpeso's life. (TT at 323:7-20.) FBI Agent Robert Neuendorf testified that on October 22, 1992, he searched Malpeso's car pursuant to a search warrant and found bullet fragments and evidence of bullet damage, corroborating Ambosino's account of the attempted murder. (TT at 802-809.)
In June 1992, petitioner and a host of other Colombo Family members and associates, including, inter alia, Ambrosino, Carmine Sessa, and Scarpa, planned, yet again, to murder Cutolo. (TT at 327:7-329:14.) On June 8, Ambrosino met with petitioner and Carmine Sessa, who had been planning the attack on Cutolo, and learned that on the following Saturday, June 13, a crew of seventeen made members and associates would attempt to kill Cutolo. (TT at 329:16-19, 334:24-335:2.) Petitioner informed Ambrosino that Pontillo, Fiorenza, DeMatteo, and Brady were designated as shooters, Ambrosino would either be a shooter or a driver, and petitioner would be involved as a shooter if the others needed help. (TT at 335:11-336:10.) The attempt was to take place on Forest Hill Road in Staten Island, near Cutolo's girlfriend's home, and petitioner's crew gathered stolen cars, machine guns, shotguns, bulletproof vests, and armor piercing bullets, and conducted test-drives of the escape route in preparation. (TT at 336:11-338:18.) The FBI had installed wiretaps in Ambrosino's car, however, and after hearing Ambrosino discussing the murder plot, they arrested Ambrosino and DeMatteo on June 10, before the plot could be carried out. (TT at 192:21-193:11.) The remainder of the crew thereafter called off the murder plot. (TT at 193:1-11.)
4. Loansharking Conspiracy
The government also introduced evidence of petitioner's loansharking activities through Ambrosino's and Imbriale's testimony. Loansharking, also known as shylocking, is the lending of money at very high rates of interest, and is one of the more common illegal business activities conducted by organized crime families in La Cosa Nostra. (TT at 92:9-23.) Interest rates typically vary from one percent to five percent, and the interest, otherwise known as vig, vigorish, juice or points, is paid every week on the principal sum. (TT at 92:24-93:12.) By way of background, Agent DeVecchio gave the following example at trial of a typical loansharking transaction:
[I]f someone borrows, say, five thousand dollars and pays five percent a week, the interest would be $250 a week on that loan, and the borrower would repay that two hundred and fifty every week until he was able to put five thousand dollars together in one lump sum and pay off the loanshark. (TT at 93:3-8.)
Ambrosino testified that as a member of petitioner's crew, he often engaged in loansharking. (TT at 207:17-19.) Over the course of four years, petitioner loaned Ambrosino approximately $170,000, for which Ambrosino paid petitioner one and one-half percent interest per week. (TT at 207:21- 208:8.) Ambrosino loaned that money to approximately thirty to forty different people at interest rates varying between three percent and five percent per week. (TT at 208:9-23.) Even if Ambrosino's customers did not pay him, he was still responsible for his weekly payments to petitioner, and accordingly, "if they didn't pay for a few weeks, [he] would go after them, hit them." (TT at 209:14-23.)
Ambrosino further testified that petitioner similarly loaned money to other members of his crew, including Imbriale, who would then loan the money out to their own customers. (TT at 212:12-213:2.) These crew members would give Ambrosino the interest payments on their loans to pass along to petitioner. (TT at 213:16-18.) In total, Ambrosino estimated that petitioner had approximately $200,000 of his own money "out on the street" as well as approximately $220,000 for which petitioner paid Carmine Sessa one point per week. (TT at 214:12-216:9.)
Imbriale confirmed that petitioner loaned him approximately $90,000 at two percent interest per week and that Imbriale would occasionally make the payments to Ambrosino. (TT at 911:2-913:1.) Imbriale likewise loaned this money out to various customers at interest rates between three percent and five percent per week. (TT at 911:15-912:12.)
Pursuant to a wiretap order, FBI agents had installed a listening device in Ambrosino's vehicle. (TT at 373-374.) Between June 9-10, 1992, they recorded numerous conversations had by petitioner's crew, which are replete with, inter alia, the following comments about petitioner's loansharking business:
Ambrosino: I'll be right out. Guy owes me money. I got to go see if he's got any money for Michael.
Ambrosino: I mean (UI) wrong with this guy's beeper and this kid's waiting for me in the street, got to give me money. I laid money out for him. I laid it out for Richie. Alex's money I laid out for Michael. He's waiting for me and I'm gonna leave, my money.
Ambrosino: I (UI) I give Richie 72 dollars a week to this guy. Seven thousand, two points, this guy's brother-in-law. I lay it out to Richie. I don't collect it. That's what I'm saying over here, what I go through. Now Richie is suppose to (UI) me now give this guy a crack if I have to. Well, I'm not gonna crack the guy.
Ambrosino: 'Cause it's only a week. What I wanted was to just scare him a little bit well I don't know it's just (UI) what I'm trying to say. I give Richie $70. Got the money this week tells me. . . . Pontillo: Did he come up with that other money? . . . Ambrosino: . . . I told Richie keep his mouth quiet. I was going to whack it up with you guys without Michael. Two weeks ago I told you don't say nothing to nobody. He told Michael last week this kid's gonna give the six thousand. I was giving to all of us. . . . I shouldn't have told this fuckin' guy. I was shaking this kid down for $6,000. Cause (UI) whack it up for the, I told Richie a few weeks ago. He goes and tells Michael last week.
You understand what happens, two weeks ago I called Richie on the side quiet said I got this kid's father (UI) $6,500 of the bad money.
Pontillo: What did he say?
Ambrosino: Yeah, his father's cashing it for him like they, they mature within the next couple of days, in a week they're maturing. He gave me the customers when . . . He gave me the business. He gave me the customers for sixty-five but the customers he gave me they're not paying. So I told him (UI) they start paying, they had no money, the guys, and he wasn't . . . I want the money from you. Pay points on it. How much ya want though just keep your fucking mouth quiet (UI) . . . . I'll put a day's pay in everybody's pocket, I said . . . Know what it is? He wants to be, he wants to be welcome so bad over here that he thinks by doing . . .
DeMatteo: He wants to make money, Joe.
Ambrosino: Yeah, right, well that's it too. DeMatteo: He wants to make money and for Michael because he feels he's gonna make more money than he's gonna make with you.
III. The DeVecchio and Scarpa Scandal
The improper relationship between Scarpa, a Colombo Family soldier and longtime FBI confidential informant, and DeVecchio, his FBI handler, has been the subject of countless post-conviction motions and civil suits, as well as books and magazine articles. See, e.g., Clemente v. Fed. Bureau of Investigation, No. 08-1252, 2010 WL 3832047 (D.D.C. Sep. 28, 2010) (request pursuant to the Freedom of Information Act, 5 U.S.C. § 552, seeking "any informant file on Mr. Scarpa, including in particular any Top Echelon ('TE') Informant File"); Grancio v. DeVecchio, 572 F. Supp. 2d 579 (E.D.N.Y. 2008) (asserting, inter alia, federal constitutional claims and tort claims against DeVecchio, alleging that he conspired with Scarpa to murder plaintiff's husband); United States v. Brady, No. CR-92-792, 1999 WL 438468 (E.D.N.Y. Apr. 30, 1999) (denying defendants' motion for a new trial based upon newly discovered evidence regarding the relationship between Scarpa and DeVecchio); Lee, Carol E. and Evan Thomas, You Can Go Home Again: Prosecutors said he helped with mob hits, then their case unraveled. Now this G-man's hitting the beach, NEWSWEEK, Nov. 26, 2007, at 44; Brick, Michael, The Mafia, an F.B.I. Agent and Murder: Mr. Scorsese, Your Next Film Awaits, N.Y. TIMES, Oct. 21, 2007, at A33; Fredric Dannen, The G-Man and the Hit Man, NEW YORKER, Dec. 16, 1996. Scarpa and DeVecchio's misdeeds have even been fictionalized into the plots of movies and television shows. See Zeitchik, Steven and Matthew Belloni, Real life puts a hit on mob pic, HOLLYWOOD REPORTER, Aug. 20, 2009, at 1 (detailing a contract dispute jeopardizing the production of a movie based upon Scarpa's life); Lee, NEWSWEEK, supra (noting that an "incident, publicly reported years later as part of an internal FBI investigation into DeVecchio's handling of Scarpa, became the basis for a scene in 'The Sopranos' finale"). A comprehensive explanation of Scarpa's criminal activity, DeVecchio's misconduct in handling Scarpa and the disclosure of their relationship (hereinafter referred to as the "Scarpa/DeVecchio Information") is detailed at length in Judge Weinstein's opinion in Orena v. United States, 956 F. Supp 1071, 1085-89 (E.D.N.Y. 1997)*fn11 and Judge Sifton's opinion in United States v. Persico, No. 92-cr-351, 1997 WL 867788, at *7-17 (E.D.N.Y. Mar. 13, 1997), rev'd in part, United States v. Orena, 145 F.3d 551 (2nd Cir. 2008). Accordingly, a brief summary follows.
A. Scarpa's Criminal Activities
Scarpa "was a life-long associate of organized crime." Orena, 956 F. Supp.at 1085. By the early 1980s, he had fully established himself as a member of the Colombo Family, and routinely associated with other Colombo Family members and associates. Id. Scarpa routinely engaged in credit card fraud, extortion, gambling, narcotics trafficking, and loansharking, and directed a crew out of the Wimpy Boys Social Club in Brooklyn. Id. In 1986, Scarpa was indicted for the possession and trafficking of fraudulent credit cards. Pursuant to a plea agreement, he faced up to seven and one-half years of imprisonment, but ultimately was sentenced only to probation and a $10,000 fine. Id. In 1987, the Drug Enforcement Agency investigated the activities at the Wimpy Boys Social Club, resulting in ten indictments. Id. However, Scarpa was not among those indicted. Id.
By the time of the Colombo Family War, Scarpa was an acting captain in the family. (TT at 187.) Scarpa described himself at that time as "the most powerful entity in the Colombo Family and . . . an authoritative figure who bowed down to no one." (Rule 33 Motion, Ex. 1 (Aff. of Margaret Clemons, May 24, 1994.)) During the war, Scarpa was a participant in numerous murders and murder attempts, including the attempt on Joe Campi, (TT at 301), the attempt on Billy Cutolo, (TT at 328), and the murder of Nicholas "Nicky Black" Grancio, (TT at 480), among others. Several of the murders were committed because Scarpa had informed other Colombo Family members and associates that the victim was cooperating with law enforcement. (Rule 33 Motion, Ex. 10 (Aff. of Jeffrey W. Tomlinson, June 26, 1994 ("Tomlinson Aff.") at 5.)) These criminal activities occurred during the time period in which Scarpa acted as a confidential informant to the FBI. See infra § III(B).
On or about August 13, 1992, the King's County District Attorney's Office arrested Scarpa on a firearms charge. (Rule 33 Motion, Ex. 8 (Aff. of George Stamboulidis, Jan. 27, 1995 ("Stamboulidis Aff")) at ¶ 9.) That same day, the FBI arrested Scarpa, charging him with, inter alia, conspiracy to murder William Cutolo. (Id.) Although Scarpa was initially released on bail, in December 1992, he participated in a shooting, and was detained until released on home confinement due to his medical condition. (Rule 33 Motion, Ex. 7 (Aff. of Andrew Weissman, Jan. 27, 1995 ("Weissman Aff.")) at ¶ 11.) On February 4, 1993, Scarpa was indicted for his role in three murders, a murder conspiracy, and a firearms offense, and on May 6, 1993, Scarpa pleaded guilty to two counts of the Indictment.
(Stamboulidis Aff. at ¶ 13.) On December 15, 1993, Scarpa was sentenced to a ten year term of imprisonment and a five year term of supervised release. (Id., ¶ 15.) Scarpa died in prison in 1994. New York v. De Vecchio, 468 F.Supp.2d 448, 451 (E.D.N.Y. 2007).
B. Scarpa's Cooperation with Law Enforcement
Scarpa is rumored to have assisted the FBI since the early 1960s, when he purportedly aided the FBI's recovery of the bodies of three civil rights workers kidnapped and murdered by the Mississippi Ku Klux Klan. Orena, 956 F. Supp. at 1086. (See also Rule 33 Motion, Ex. 18 (Summary of FBI Interview with Carmine Sessa, Apr. 18, 1994 ("Sessa Interview")), at 2 (describing Scarpa's rumored cooperation in the 1960s and 1970s.)) However, FBI internal briefing memoranda known as "Form 209s," indicate that Scarpa's cooperation with law enforcement dates back to at least 1980. Persisco, 1997 WL 867788, at *10; Orena, 956 F. Supp. at 1086. As a confidential informant, Scarpa provided the FBI with extensive information pertaining to the Colombo Family War, including information relating to changes in family leadership, the induction of new members, murders and attempted murders, meetings between the Persico and Orena factions, and temporary truces. (Rule 33 Motion, Ex. 12A-12Z.) Scarpa was closed as an informant on March 3, 1992, after rumors spread that he was conspiring to murder another Colombo Family member. Orena, 956 F. Supp. at 1086. However, the FBI restored his informant status only one month later, on April 8, 1992. Id. Scarpa was paid by the FBI for his ...