U.S. v. Orena, Docket Nos. 97-1174

• Citation: 145 F.3d 551
• Decision Date: 03 June 1998
• Docket Number: Docket Nos. 97-1174
• Parties: UNITED STATES of America, Appellant, v. Victor J. ORENA; Pasquale Amato; Carmine Sessa; Michael Sessa; Lawrence A. Fiorenza; Lawrence Mazza; Robert Zambardi; Alphonse Persico; Joseph Tomasello; Theodore Persico, Sr.; Richard Fusco; James Delmastro, Defendants, Joseph P. Russo; Anthony Russo; and Joseph Monteleone, Sr., Defendants-Appellees. to 97-1176.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 551

145 F.3d 551

UNITED STATES of America, Appellant, v. Victor J. ORENA; Pasquale Amato; Carmine Sessa; Michael Sessa; Lawrence A. Fiorenza; Lawrence Mazza; Robert Zambardi; Alphonse Persico; Joseph Tomasello; Theodore Persico, Sr.; Richard Fusco; James Delmastro, Defendants Joseph P. Russo; Anthony Russo; and Joseph Monteleone Sr., Defendants-Appellees.

Docket Nos. 97-1174 to 97-1176.

United States Court of Appeals Second Circuit.

Argued March 6, 1998.

Decided June 3, 1998.

Valerie Caproni, Assistant United States Attorney for the Eastern District of New York, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Barbara D. Underwood, Chief Assistant United States Attorney, of counsel), for Appellant United States of America.

Salvatore J. Marinello, Mineola, NY, for Appellee Joseph P. Russo.

Alan S. Futerfas, New York City (Ellen B. Resnick, of counsel), for Appellee Anthony Russo.

Joshua L. Dratel, New York City (Marion A. Seltzer, of counsel), for Appellee Joseph Monteleone, Sr.

Before: OAKES and CABRANES, Circuit Judges, and HURLEY, District Judge. ^*

JOSE A. CABRANES, Circuit Judge:

The government appeals from that portion of a judgment of the United States District Court for the Eastern District of New York (Charles P. Sifton, Chief Judge ) granting a new trial to defendants-appellees Joseph P. Russo, Anthony Russo, and Joseph Monteleone, Sr. See United States v. Persico, No. CR-92-0351, 1997 WL 867788 (E.D.N.Y. March 13, 1997). The district court granted appellees' motions for a new trial on the basis that the government violated its Brady obligations, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose information that defendants could have used to impeach the credibility of out-of-court statements made by co-conspirator Gregory Scarpa, Sr., that were admitted at trial under Fed.R.Evid. 801(d)(2)(E). ¹ While granting appellees' motions for a new trial, the district court denied their motions to dismiss the indictment altogether based on allegations of "outrageous government conduct." We affirm so much of the district court's order as denied appellees' motions to dismiss the indictment, but reverse so much of the order as granted appellees' motions for a new trial because we conclude that the impeachment evidence withheld by the government does not meet the Bradystandard of "materiality."

I.

This case arises from the deadly internal war within the Colombo Organized Crime Family of La Cosa Nostra (the "Colombo Family") that began in 1991 when the Colombo Family split into two opposing factions--one loyal to the incarcerated "official" boss of the family, Carmine Persico, Jr., and the other loyal to the appointed acting boss, Victor J. Orena. See Persico, 1997 WL 867788, at * 2. The complex details of this intra-family war are described at greater length in the district court's opinion, with which we assume familiarity.

On May 13, 1993, a fifteen-count superseding indictment was returned against defendants-appellees--Joseph P. Russo, Anthony Russo, and Joseph Monteleone, Sr.--and co-defendants Alphonse Persico, Joseph Tomasello, Theodore Persico, Sr., Richard Fusco, Robert Zambardi, Lawrence Fiorenza, Lawrence Mazza, and James Delmastro. All three defendants-appellees were charged with violating and conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c), (d). Defendants-appellees, members of the Persico faction, were charged--both as predicate RICO offenses and as separate substantive offenses--with conspiracy to murder members of the Orena faction and with the murders of two particular members of the rival faction, John Minerva and Michael Imbergamo. Joseph and Anthony Russo were also charged--both as independent offenses and as part of the RICO pattern of racketeering--with conspiracy to make extortionate extensions and collections of credit, in violation of 18 U.S.C. §§ 892, 894. Finally, all defendants-appellees were charged with the substantive offense of using and carrying firearms during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). After a ten-week jury trial, Joseph Russo and Monteleone were found guilty of all charges, and Anthony Russo was found guilty of all charges except for the charge of conspiracy to make extortionate collections of credit. See Persico, 1997 WL 867788, at * 1.

The Trial Evidence

The government's evidence at trial came primarily in the form of testimony from four accomplice witnesses--Lawrence Mazza, Carmine Sessa, Joseph Ambrosino (all members of the Persico faction), and Salvatore Micciota (a member of the Orena faction)--and revealed the following:

Joseph and Anthony Russo were captains in the Colombo Family, and in 1992, after the intra-family war commenced, Joseph Russo was named acting underboss within the Persico faction; Monteleone was a member of the Russos' crew. See id., 1997 WL 867788 at * 3, * 5. After an unsuccessful attempt by Persico loyalists to kill Victor Orena in June 1991 inflamed tensions within the Colombo Family, Sessa attended a meeting that included the Russos, Monteleone, and others, during which the Russos told Sessa that they would call in their men and tell them to prepare for war with the Orena faction. Miciotta, at the time a member of the Russos' crew, testified that he was called to a meeting by the Russos at which the Russos told him and other members of the crew about the intra-family war, and to ready themselves for it. Following the meeting, Monteleone told Miciotta "that this was an opportunity for all of us to elevate our stature in the family." Id., 1997 WL 867788 at * 2, * 5.

A truce organized by representatives of the other organized crime families of La Cosa Nostra broke down in November 1991 when members of the Orena faction attempted to kill Gregory Scarpa, Sr., a soldier in the Persico faction. Mazza testified that immediately after the attempted murder of Scarpa he went with Scarpa to see Anthony Russo, and after being informed of the attempt on Scarpa's life, Anthony Russo said that he would contact Sessa, Joseph Russo and others to let them know that "the shooting started." Id., 1997 WL 867788 at * 2. A meeting was then held at Joseph Russo's grandmother's house in Brooklyn, at which the Persico captains decided to retaliate. Ambrosino testified that Anthony Russo assured him that they were ready to attack the Orena side. He also testified that, sometime after this meeting, Joseph Russo and Theodore Persico told him [Ambrosino] that they, Anthony Russo, and others had attempted to kill Benny Aloi, an Orena captain, but had "just missed." Id. According to Mazza and Sessa, Monteleone participated in a murder attempt on a different member of the Orena faction, Louis Malpeso, which was also unsuccessful. See id., 1997 WL 867788 at * 5.

During the early months of 1992, the Russos attended several meetings of Persico faction members to monitor the progress of the war. Sessa and Scarpa repeatedly complained that Scarpa and his crew were the only ones who had actually succeeded in killing any Orena faction members, and that they were unfairly shouldering the burden for all the others. The Russos provided assurances that their associates "were out every day looking for people," particularly those former members of the Russos' crew who had switched allegiances to the Orena side, including John Minerva. See id., 1997 WL 867788 at * 3.

On March 25, 1992, John Minerva was killed outside a cafe he owned on Long Island. See id. Michael Imbergamo, who apparently had been providing security for Minerva following an earlier attempt on Minerva's life two weeks prior to his murder, was killed along with Minerva. Eyewitness testimony and telephone records placed Monteleone, in an agitated state, see Trial Transcript at 3542, at a bar and a delicatessen less than two blocks away from Minerva's cafe shortly before Minerva's murder. See 1997 WL 867788, at * 5.

Soon after the Minerva/Imbergamo murders, the Russos and other members of the Persico faction, including Scarpa, met at Wolf's Delicatessen in Manhattan. Mazza testified that during this meeting, the Russos admitted their involvement in these murders, bragging that "they had been working on getting [Minerva]" and "finally got to him in front of his cafe," and that they were particularly satisfied because Minerva had worked for Joseph Russo's father for many years before deciding to ally himself with Orena. See id., 1997 WL 867788 at * 4.

Unlike Mazza, Sessa testified that he first learned of the Russos' involvement in the murders not from the Russos themselves but from Scarpa. Soon after the murders, and after learning from Scarpa about the Russos' involvement, Sessa attended a meeting of Persico faction members (including Monteleone) at a New York diner. When he entered the meeting Sessa approached Joseph Russo and congratulated him for his "nice work," and Russo accepted the congratulations. Although Minerva's name was not mentioned, Sessa testified that he believed the reason for the congratulations--the killing of Minerva--was well understood by Russo. Sessa thereafter heard from another member of the Persico faction of the Colombo Family--either Joseph Tomasello or Theodore Persico--that Monteleone and another member of the Russos' crew, Tommy Gioeli, as well as a member of Theodore Persico's crew, had committed the Minerva/Imbergamo murders. Sessa, in turn, told Ambrosino that the Russos' crew was responsible for the murders. See id., 1997 WL 867788 at * 3.

The case presented by defendants-appellees consisted largely of efforts to discredit the accomplice witnesses, and to portray the cycle of violence that erupted in 1991 as purely a personal vendetta on the part of Scarpa, perpetrated with the aid of Sessa. Defendants-appellees claimed that there was no factional war within the Colombo...