U.S. v. Grado, s. 96-1077
| Citation | 104 F.3d 351 |
| Decision Date | 30 October 1996 |
| Docket Number | Nos. 96-1077,s. 96-1077 |
| Parties | NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23. UNITED STATES of America, Appellee, v. Anthony GRADO, Thomas Anzeulotto, aka "Tommy Red,", Defendants-Appellants. (L), 96-1092. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
AFFIRMED.
John Apicella (Brooklyn, NY); James R. Froccaro, Jr. (Port Washington, NY)
Bridget M. Rohde, Asst. U.S. Atty. (Zachary W. Carter, U.S. Atty., James Orenstein, Asst. U.S. Atty., of counsel; E.D.N.Y.) E.D.N.Y.
Present: MESKILL, CALABRESI, CABRANES, Circuit Judges.
Thomas Anzeulotto and Anthony Grado appeal from a judgment entered on January 17, 1996, in the United States District Court for the Eastern District of New York (Block, F.). Anzeulotto and Grado were convicted after a jury trial of conspiring to make extortionate extensions of credit and to use extortionate means to collect extensions of credit in violation of 18 U.S.C. §§ 892, 894. Anzeulotto was also convicted of the substantive loansharking offenses of making extortionate extensions of credit and using extortionate means to collect extensions of credit in violation of 18 U.S.C. §§ 892, 894. Grado was acquitted of the substantive loansharking charges and Anzeulotto was acquitted of using and carrying a firearm in violation of 18 U.S.C. § 924(c). Grado was sentenced to 63 months of imprisonment to be followed by three years of supervised release, and Anzeulotto was sentenced to 96 months of imprisonment to be followed by three years of supervised release.
On appeal, Grado and Anzeulotto contend that the district court erred in holding that they were not denied their Fifth Amendment right to a fair trial by the government's failure to disclose evidence favorable to them. Anzeulotto further contends that the district court erred in rejecting his motions for a new trial under Rule 33 of the Federal Rules of Criminal Procedure and 28 U.S.C. § 2255, in which he alleged that his trial attorney had a conflict of interest while representing him. We reject both claims and affirm the district court.
The following facts were adduced at trial through the testimony of Robert Molini, Grado's cousin. Molini had been arrested by the DEA on September 9, 1992, for his involvement in a narcotics ring allegedly run by one Frederick Puglisi. Molini testified against Anzeulotto and Grado pursuant to a cooperation agreement with the government.
According to this testimony, in the summer of 1991, Molini needed to borrow money to pay for a marijuana shipment related to the Puglisi drug ring. He went to Grado, who introduced him to Anzeulotto. On two occasions, Anzeulotto loaned Molini $20,000 for a ten-day period, with the understanding that Molini would pay back the principal and 20% interest ($4000 for each loan within ten days). Molini was unable to pay back $3500, and fell increasingly into debt to Anzeulotto as interest accrued. Grado made threatening phone calls to Molini from time to time, in response to which Molini made a stream of payments totalling about $5000.
On June 8, 1992, Molini received a phone call telling him to go to Stella's pharmacy in Brooklyn. Molini drove to the pharmacy in Puglisi's car with $1000, which he gave to Grado upon arrival. Anzeulotto approached, stated that he wanted the balance of the money in one installment, and asked Molini where he lived. Molini refused to supply his address. Anzeulotto then punched Molini in the face and neck, smashed two of the windows of Puglisi's car, took Molini to an abandoned park, and threatened him at gunpoint to make him disclose his address.
Molini gave a fake address, returned to the pharmacy, and called Puglisi to tell him what had happened. Unbeknownst to Molini, Puglisi, Grado, and Anzeulotto, Molini's mobile phone had been wire-tapped with court authorization from June 22, 1992 until July 14, 1992. At trial, eight telephone conversations intercepted over Molini's mobile telephone were introduced into evidence.
On January 25, 1995, the jury entered its verdict. On October 12, 1995, Grado and Anzeulotto filed a motion contending that the government had violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963) by suppressing tapes of other conversations. The district court denied the motion, finding that while the government had suppressed some tapes, the information in those tapes was not material.
Anzeulotto brought a Rule 33 motion and a § 2255 motion on June 21, 1995. In both motions, he contended that he was entitled to a new trial because his attorney, Joel Winograd, had suffered from a conflict of interest. Anzeulotto stated that he had discovered that Winograd had given confidential government material to a member of a crime family. Anzeulotto also alleged that Winograd had represented another member of a crime family, Anthony Liberatore, whose son had testified against Anzeulotto in a different proceeding. The district court denied the Rule 33 motion with prejudice as time-barred and dismissed the § 2255 motion without prejudice as premature. These appeals ensued.
The defendants first contend that the government violated its Brady obligation to turn over any evidence favorable to the defendant that is "material." Brady, 373 U.S. at 87. "[F]avorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 115 S.Ct. 1555, 1565 (1995) (citations and internal quotation marks omitted). Materiality is a mixed question of law and fact. United States v. Rivalta, 925 F.2d 596, 598 (2d Cir.), cert. denied, 502 U.S. 875 (1991). "While the trial judge's factual conclusions as to the effect of nondisclosure are ordinarily entitled to great weight, we conduct our own independent examination of the record in determining whether the suppressed evidence is material." United States v. Payne, 63 F.3d 1200, 1209 (2d Cir.1995), cert. denied, 116 S.Ct. 1056 (1996) (citations and internal quotation marks omitted).
To succeed in a Brady claim, the defendant must show both that the evidence was material and that the government suppressed it. Because we affirm the district court's finding that the tapes were not material, we need not reach the issue of whether the government suppressed the tapes.
The defendants insist that three sets of allegedly suppressed evidence were material: (1) a statement by Molini that Grado was not at Stella's pharmacy on June 8, 1992; (2) statements by Molini that the confrontation at the pharmacy had "nothing to do with me [Molini]"; and (3) statements by Molini to Puglisi about the pharmacy incident that omit certain acts of aggression allegedly committed by Anzeulotto.
The defendants first contend that the tapes would have shown that Grado was not involved in the events that began at Stella's pharmacy. They support this contention with a statement Molini made to Puglisi on tape: However, the defendants neglect to mention that later in the same recorded conversation, Molini stated: "Then [Anzeulotto] says Anthony tell your cousin, tell me where--write [Molini's address] down--write it down on this." While Grado may not have been there for the entire proceedings, the tapes make clear that Grado was present when Anzeulotto threatened Molini. We therefore cannot say that there was a "reasonable probability" that the disclosure of this evidence to the defense would have changed the result of the proceeding.
The defendants next contend that Molini's two statements on tape to Puglisi that the pharmacy altercation had nothing to do with him were material. They argue that these statements show that the incident was not precipitated by Anzeulotto's loans to Molini. However, as the district court noted, similar evidence was presented and explained at trial. That evidence was a recording of a June 30, 1992 conversation between Puglisi and Molini in which Molini denied owing Anzeulotto money. Molini admitted at trial, however, that this statement to Puglisi...
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