164 F.3d 796 (2nd Cir. 1999), 97-1456, United States v. Persico

Docket Nº:Docket Nos. 97-1456L, 97-1457, 98-1008CON.
Citation:164 F.3d 796
Party Name:UNITED STATES of America, Appellee, v. Theodore PERSICO, Robert Zambardi, and Richard Fusco, Defendants-Appellants.
Case Date:January 15, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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164 F.3d 796 (2nd Cir. 1999)

UNITED STATES of America, Appellee,


Theodore PERSICO, Robert Zambardi, and Richard Fusco,


Docket Nos. 97-1456L, 97-1457, 98-1008CON.

United States Court of Appeals, Second Circuit

January 15, 1999

Argued Sept. 3, 1998.

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Barry M. Fallick, New York, N.Y. (Bobbi C. Sternheim, Rochman Platzer Fallick & Sternheim, New York, N.Y., on the brief), for defendant-appellant Persico.

Herald Price Fahringer, New York, N.Y. (Erica T. Dubno, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, New York, N.Y.; James R. Froccaro, Jr., Garden City, N.Y., on the brief), for defendant-appellant Zambardi.

Bennett M. Epstein, New York, N.Y. (Marvin B. Segal, Crocco & De Maio, New York, N.Y., on the brief), for defendant-appellant Fusco.

George A. Stamboulidis, Asst. U.S. Atty., Brooklyn, N.Y. (Zachary W. Carter, U.S. Atty., David C. James, Ellen M. Corcella, Andrew Weissmann, Asst. U.S. Attys., Brooklyn, N.Y., on the brief), for appellee.

Before: NEWMAN, CARDAMONE, and PARKER, Circuit Judges.

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JON O. NEWMAN, Circuit Judge:

These appeals by three defendants who participated in a street war between factions of an organized crime family primarily present issues arising from the Government's failure, before trial, to disclose both the informant role of a co-conspirator and aspects of an FBI agent's allegedly outrageous conduct in dealing with the informant. In particular, we are required to apply the standard for granting a motion to withdraw a guilty plea, after conviction but before sentencing, on the ground of newly discovered Brady /Giglio material. These issues arise on appeals from judgments of the District Court for the Eastern District of New York (Charles P. Sifton, Chief Judge) convicting Theodore Persico, Richard Fusco, and Robert Zambardi of racketeering offenses.

Persico was convicted, after a ten-week jury trial, of racketeering and racketeering conspiracy, conspiracy to commit murder in aid of racketeering, loansharking, and carrying a firearm in connection with crimes of violence. Fusco was convicted, on a plea of guilty, of racketeering conspiracy. Zambardi was convicted, also on a plea of guilty, of a substantive count of racketeering. Fusco and Zambardi challenge the denial of their motions to withdraw their guilty pleas. Persico and Zambardi seek dismissal of the indictment because of allegedly outrageous government misconduct, or, alternatively, a new trial for Persico and an initial trial for Zambardi. Persico also seeks reversal of his firearms conviction, as well as a remand for resentencing because of an allegedly insufficient sentencing proceeding. We affirm the judgments in all respects.


The charges and the Persico trial. The charges in this case arose from an internal war between the Persico and the Orena factions of the Colombo organized crime family, which was fought on the streets of New York City from mid-1991 through the end of 1994. The war was the subject of numerous indictments and has already precipitated several decisions of this Court, which recount its complex details. 1

Appellant Persico, the brother of the Colombo family boss, Carmine Persico, Jr., was a member of the Persico faction. He was tried in this case with four other members of that faction, Joseph and Anthony Russo (hereinafter "the Russos"), Joseph Monteleone, and Lawrence Fiorenza. Appellants Fusco and Zambardi, who pled guilty, were also members of the Persico faction.

The trial focused on a conspiracy among members of the Persico faction to murder members of the Orena faction and on three murders of Orena faction members that occurred during the conspiracy: John Minerva and Michael Imbergamo, killed in one incident, and Lorenzo Lampesi, killed separately. Evidence was also presented showing many other incidents in which one or more of the defendants plotted or attempted to kill members of the Orena faction.

The proof consisted largely of the testimony of four cooperating accomplice witnesses: Carmine Sessa (the former consigliere of the Colombo family's Persico faction), Lawrence Mazza, Joseph Ambrosino (both lower-level soldiers in the Persico faction), and Salvatore Miciotta (a soldier in the Orena faction). These witnesses all testified from their personal knowledge of the conspiracy and the murders, and the defendants' participation in them. Their testimony was corroborated by tape-recorded conversations, law enforcement surveillances, and evidence seized through lawful searches.

Persico's defense consisted mainly of attacks on the credibility of the Government witnesses. Persico attempted to show that he was not involved in a conspiracy to murder and that there was no real war at all, but only a series of personal vendettas of Sessa and Gregory Scarpa, Sr., a soldier in the Persico faction, who is the central figure in the claim of outrageous government conduct discussed below. In one claim relevant to this appeal, Persico contended that he never

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carried a firearm to his meetings with the other members of the faction. He conceded that he was a member of the Colombo family and that he might be guilty of usury, but claimed that there was no evidence of violence or the threat of violence when he extended or collected loans. When the Government showed that he had been bringing messages from the imprisoned family boss, his brother Carmine, Persico claimed that the messages counseled "peace." The jury found Persico guilty of racketeering, 18 U.S.C. § 1962(c), racketeering conspiracy, 18 U.S.C. § 1962(d), conspiracy to murder in aid of racketeering, 18 U.S.C. § 1959(a)(5), loan-sharking conspiracy, 18 U.S.C. §§ 892, 894, and carrying a firearm in connection with crimes of violence, 18 U.S.C. § 924(c)(1).

The Scarpa disclosure. After Persico's trial, the Government made several disquieting disclosures concerning Scarpa, the Persico faction member who had been identified at trial as a target of an assassination attempt by the Orena faction. First, the Government acknowledged that for many years Scarpa had been an informant for the FBI. Second, it was disclosed that Scarpa had lied about or misrepresented his own involvement in some of the murders occurring during the intra-family war and had falsely attributed some of these murders to others. Finally, it was disclosed that Scarpa's "handling" FBI agent, R. Lindley DeVecchio, might have improperly given Scarpa sensitive FBI information that would have helped him wage war against the Orena faction and also avoid the arrest of himself and others. See United States v. Orena, 145 F.3d 551 (2d Cir.1998).

Following the disclosures, Persico and his four trial co-defendants supplemented their previously filed motions for a new trial. In essence, they claimed that the prosecution had violated its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, by failing to disclose exculpatory evidence that Scarpa was an informant. They argued that (1) because Scarpa was an informant, his out-of-court statements should not have been admitted as co-conspirator hearsay, (2) the Scarpa hearsay and its misrepresentations so permeated and tainted the proceedings as to undermine confidence in the verdict, (3) certain material in the FBI reports concerning Scarpa could have been used to impeach the credibility of the out-of-court declarations, and (4) in dealing with Scarpa, DeVecchio had engaged in "outrageous conduct" requiring the dismissal of the indictments. 2 The District Court granted the motion for a new trial of the Russos, except as to the loan-sharking convictions, and granted the motion of Monteleone (who was not charged with loan-sharking) in its entirety. The Court denied the motions of Persico and Fiorenza.

Chief Judge Sifton found that certain statements made by Scarpa to DeVecchio, undisclosed by the Government before trial, could have been used to impeach the out-of-court statements of Scarpa that were admitted as co-conspirator statements. The undisclosed impeachment material that the District Court found mandated a new trial as to the Russos and Monteleone were statements Scarpa made to the FBI "in which Scarpa blame[d] other members of the Persico faction for murders he indisputably committed." United States v. Persico, No. CR-92-0351, 1997 WL 867788, at * 33 (E.D.N.Y. Mar. 13, 1997). As Chief Judge Sifton explained:

While I remain confident that the jury was correct in finding that [the Russos and Monteleone] were members of the criminal enterprise described in the indictment and participated in the conduct of the affairs of that enterprise by joining in the Persico war, I am not confident that the jury would have found that they did so by engaging in the specific pattern of racketeering activity with which they were charged, namely, a pattern which included the murders of Minerva and Imbergamo. After a review of the Scarpa 209s released by the government, my confidence in the verdict of guilty on these counts is substantially

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undermined, and a new trial is ordered as to these defendants.

Id. On the Government's appeal of the decision awarding new trials to the Russos and Monteleone, this Court reversed. See Orena, 145 F.3d at 560-61.

As noted, the District Court denied Persico's motion for a new trial. Chief Judge Sifton's rationale included the following:

The record is replete with evidence that Theodore Persico conspired with others, including Sessa and Ambrosino, to plan murders separate and apart from those perpetrated by Scarpa or in which he had any hand. Thus, evidence of Persico's overt plotting to kill Cutolo and others is wholly unperturbed by the revelations of Scarpa's other activities. Given the substantial evidence in the record relating Theodore Persico's attendance at meetings to discuss the war, his travels to visit his brother...

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