Appeal from an Order entered on April 9, 2010, in the United States District Court for the Eastern District of New York (Dearie, J.) denying defendant-appellant's motion to compel post-conviction DNA testing of six items pursuant to 18 U.S.C. § 3600, the court having determined that the proposed testing would not raise a reasonable probability that the defendant did not commit the offense of murder in furtherance of a continuing criminal enterprise.
The opinion of the court was delivered by: Miner, Circuit Judge:*fn2
Submitted: September 6, 2011
Before: JACOBS, Chief Judge, MINER*fn1 and KATZMANN, Circuit Judges.
Defendant-appellant Thomas Pitera appeals from an Order entered in the United States District Court for the Eastern District of New York (Dearie, J.) denying his motion to compel post- conviction DNA testing of six items pursuant to the Innocence Protection Act (the "Act"). 18 U.S.C. §§ 3600 et seq. (2006). Pitera contends that the testing of these items will provide evidence exonerating him from his conviction for the murder of three persons in furtherance of a continuing criminal enterprise. The District Court determined that Pitera failed to demonstrate that the proposed testing would raise a reasonable inference that he did not commit the offense. On appeal, Pitera faults the government for failing to take reasonable measures to preserve the items he seeks to test and for a lack of due diligence in searching for the items. Pitera contends that DNA on the six items, if found, would raise a reasonable probability that he did not commit the murders for which he was convicted.
I. Conviction and Subsequent Proceedings
In an Opinion filed on September 22, 1993, we affirmed the November 6, 1992, judgment of the District Court for the Eastern District of New York (Reena Raggi, Judge) [following a jury trial,] convicting [Pitera] of various offenses including racketeering, in violation of 18 U.S.C. § 1962(c) (1988); supervising a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848(a), (c) (1988); murder in furtherance of a CCE, in violation of 21 U.S.C. § 848(e)(1)(A) (1988); and several narcotics and firearms offenses.
United States v. Pitera, 5 F.3d 624, 626 (2d Cir. 1993). We determined that [t]he evidence . . . abundantly established that Pitera was the ringleader of a criminal group that engaged in murder, drugs trafficking, kidnapping, armed robbery, and various other crimes. Several of the murders were personally committed by Pitera, who dismembered the victims' bodies and buried them in a Staten Island bird sanctuary.
Id. The "criminal group" has been identified as "the Pitera Crew of the Bonanno Organized Crime Family." Pitera v. United States, Nos. 99 CV 191, 90 CR 424, 2007 WL 3005791, at *1 (E.D.N.Y. Oct. 10, 2007). The jury's verdict included a decision not to recommend the death penalty.
Following the verdict, the District Court sentenced Pitera to seven terms of life imprisonment, four terms of imprisonment for twenty years, and five terms of imprisonment for ten years. The court directed that three of the life terms, two of the twenty-year terms, and one ten-year term run consecutively and imposed a fine of $250,000. Pitera, 5 F.3d at 626.
At several times since his conviction and incarceration almost twenty years ago, Pitera has sought post-conviction relief in various proceedings. Many of these endeavors have centered on Pitera's challenges to the testimony of accomplice witness Frank Gangi in relation to the murders for which Pitera was convicted. In rejecting one such challenge, brought in the form of a motion for reconsideration of an earlier dismissal of a motion to vacate conviction made pursuant to 28 U.S.C. § 2255 (and alternatively pursuant to 28 U.S.C. § 2241), then-District Judge Raggi, who presided at the trial, wrote the following:
Pitera . . . insists that Gangi's arrest files show that he had possession of certain guns and bags similar to those used in some of the charged murders. Pitera submits that this proves that Gangi was the true killer. Certainly, Gangi candidly acknowledged at trial that he was a direct participant in many of the gruesome murders charged in the indictment. What he explained to the jury, however, was ...