United States v. Pitera, Docket No. 10–1564–cr.

• Decision Date: 03 April 2012
• Docket Number: Docket No. 10–1564–cr.
• Citation: 675 F.3d 122
• Parties: UNITED STATES of America, Appellee, v. Thomas PITERA, aka Thommy Karate, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

675 F.3d 122

UNITED STATES of America, Appellee,

v.Thomas PITERA, aka Thommy Karate, Defendant–Appellant.

Docket No. 10–1564–cr.

United States Court of Appeals, Second Circuit.

Submitted: Sept. 6, 2011.Decided: April 3, 2012.

Roger Bennet Adler, Roger Bennet Adler, P.C., New York, New York, for Defendant–Appellant.

Emily Berger and Stephen E. Frank, Assistant United States Attorneys (Loretta E. Lynch, United States Attorney for the Eastern District of New York, of counsel), Brooklyn, New York, for Appellee.

Before: JACOBS, Chief Judge, MINER ^* and KATZMANN, Circuit Judges.MINER, Circuit Judge: ¹

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. §§ 3600–3600A (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.

BACKGROUND

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 that he had committed these crimes with Pitera. This testimony is not undercut by Pitera's “new evidence.”

Pitera v. United States, No. CV 99–191(RR), 2000 WL 33200254, at *3 (E.D.N.Y. Dec. 21, 2000) (emphasis in original). Judge Raggi went on to note that “Pitera's involvement in the murders was corroborated in many important respects,” citing two specific examples of corroborating evidence. Id.

II. The Motion for DNA Testing and the Government's Response

Returning once again to his claim that the murders for which he was convicted were in fact committed by Frank Gangi, Pitera on October 30, 2009, filed a motion in the District Court pursuant to 18 U.S.C. § 3600 to compel DNA testing of six items of physical evidence purportedly seized from Gangi, viz. a ski mask, scarf, suitcase, .22–caliber handgun, .357 Magnum, and .22–caliber rifle and scope. According to Pitera, a finding of DNA from one or all of the victims upon the items seized from Gangi would raise a reasonable probability that Gangi was the murderer.

In his “AFFIDAVIT IN SUPPORT OF DNA TESTING,” Pitera stated the following:

At trial, I was found guilty of murdering three individuals, known as “Burdi,” “Leone” and “Stern.” However, I am completely innocent of these charges and I affirm under the penalty of perjury that I did not kill or participate in killing any of these individuals.

The affidavit also includes a statement offering to “provide a DNA sample for comparison purposes.”

In a “Supporting Memorandum of Law,” filed with his affidavit, Pitera asserted the following:

In approximately 1998, Mr. Pitera had learned through a FOIA request that the FBI and the prosecuting office had possessed and failed to disclose critical physical evidence relevant to the murder offenses that Gangi had testified too [sic] during Mr. Pitera's trial. The undisclosed “evidence” consisted of a ski mask, scarf, soft-sided zippered suitcase, 22–caliber handgun, .357 Magnum, and a 22–caliber rifle & scope, all of which was confiscated during the government's investigation of “LCN” and found to be the property of cooperating witness Frank Gangi.

In the same Memorandum, he contended that he “me[t] every requirement of the [Innocence Protection] Act.” Specifically, Pitera asserted that: the evidence sought to be tested was secured during the investigation of the alleged offenses; he did not waive his right to DNA testing at his 1992 trial; the evidence is in the possession of the government, and its condition has not been compromised; the scope of the proposed DNA testing is reasonable, conforms to scientifically sound methods, and is consistent with accepted forensic practices; his theory of defense is not inconsistent with an affirmative defense presented at trial and would establish his actual innocence; the identity of the true perpetrator was a critical issue during his trial; and DNA testing may produce new material evidence that would support his theory of defense and would raise a reasonable probability that he did not commit the alleged offenses.

Responding to Pitera's motion by letter brief dated February 19, 2010, the government first argued that the evidence seized from Gangi that Pitera seeks to have tested “does not appear to be in the possession of the government.” In a section of the letter brief entitled “The Evidence the Defendant Seeks To Test Cannot Be Located and Was Likely Destroyed,” the government represented that it “has been unable to locate the six items [Pitera] seeks to have tested, most of which appear never to have been in federal custody.” The government referred to Pitera's motion as “appear[ing] to indicate that the items he seeks to have tested were seized from Gangi and two co-defendants by the NYPD [New York City Police Department] during a burglary arrest more than two decades ago.” According to the government, the NYPD file for the arrest has been sealed and therefore cannot be reviewed; the NYPD has advised that the .22–caliber rifle to which Pitera's motion referred was destroyed pursuant to its standard policy for evidence disposition; the government has been unable to locate NYPD vouchers for the other items described in the motion; and “any such evidence in NYPD custody was likely destroyed many years ago.”

Although the government faulted Pitera for offering no basis for suggesting that five of the six items sought were transferred to federal custody, it did acknowledge Pitera's suggestion that the .357 magnum sought may have been transferred to the custody of the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). However, according to the government, “[a] check of ATF records ... has failed to locate either the weapon or the file associated with it” and “pursuant to ATF policy, any such evidence would likely have been destroyed more than a decade ago.” As pertains to the inventory of evidence in its own case against Pitera, the government asserted that two suitcases were returned to Pitera's sister; that “numerous guns associated with the case have been destroyed”; that it “does maintain custody of two handguns and a rifle of the caliber described by the defendant”; however, those firearms were not seized from Gangi and are not those that Pitera seeks to have tested.

Further responding to Pitera's motion for DNA testing, the government contended that the DNA testing sought by Pitera would not raise a reasonable probability that he is innocent. Although Pitera claimed that the testing of the items sought would demonstrate that Gangi committed the murders and “framed” him by testifying against him, the government pointed out that Gangi participated with Pitera in a number of murders. Accordingly, the government argued that Gangi's...