758 F.2d 928 (3rd Cir. 1985), 84-5445, United States v. Giampa

Docket Nº:84-5445.
Citation:758 F.2d 928
Party Name:UNITED STATES of America, Appellant, v. Frank GIAMPA.
Case Date:March 29, 1985
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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758 F.2d 928 (3rd Cir. 1985)

UNITED STATES of America, Appellant,

v.

Frank GIAMPA.

No. 84-5445.

United States Court of Appeals, Third Circuit

March 29, 1985

Argued Feb. 11, 1985.

Ralph A. Jacobs, Chief, Appeals Div., Asst. U.S. Atty. (argued), W. Hunt Dumont, U.S. Atty., Newark, N.J., for appellant.

Michael Gross (argued), Gross & Gross, River Edge, N.J., for appellee.

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Before GARTH, BECKER and ROSENN, Circuit Judges.

OPINION

ROSENN, Circuit Judge.

This unusual appeal by the Government from a judgment of acquittal entered by the United States District Court for the District of New Jersey depends largely upon an analysis of the trial judge's comments during trial and the characterization of his order at the close of the case. During the trial, the judge made several unfavorable comments about the prosecution's case, and at the conclusion of the evidence, announced he was dismissing the indictment because the Government failed to disclose certain arguably helpful materials to the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Eight days later, however, the court entered a judgment of acquittal on the ground that the Government submitted insufficient evidence to sustain a conviction.

The Government contends on appeal that although nominally entered as a judgment of acquittal, the substance of the district court's order constituted a dismissal of the indictment for a Brady violation, and that the Government committed no Brady violation. We reject the Government's contention and dismiss the appeal.

I.

In the fall of 1982, Joseph Ciambrone, a convicted felon, informed the FBI that Frank Giampa had loaned him $70,000, was charging him exorbitant interest, and had threatened him with retaliation from organized crime families if the money were not repaid. The FBI agent advised Ciambrone to tape record all further conversations with Giampa. Ultimately, Ciambrone was placed in the Federal Witness Protection Program and offered immunity from prosecution for all felonies committed during 1981 and 1982 in exchange for pleading guilty to a mail fraud scheme and for cooperation in various investigations, including the investigation of Giampa. Ciambrone had a prior criminal record of at least seven convictions, mostly for larceny.

A grand jury subsequently indicted Giampa on one count of making an extortionate extension of credit in violation of 18 U.S.C. Sec. 892, one count of threatening violence in connection with a loan in violation of 18 U.S.C. Sec. 1951, and two counts of using extortionate means to collect an extension of credit in violation of 18 U.S.C. Sec. 894. The first three counts referred to loans allegedly made to Ciambrone, and the fourth referred to a loan Giampa allegedly made to Andrew Thorry, Ciambrone's nephew by marriage. Immediately after the indictment, the Government provided counsel for the defendant with a list of names, stating that the list comprised exculpatory material the Government was required to disclose to defendant pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Ciambrone was the prosecution's chief witness at trial. He testified that he bought a trucking company from Giampa in 1981 and that Giampa had told him the payments would go to "a family from New York" or "people from Long Island" and that there would be "trouble" if they were not made on time. Ciambrone said he assumed that the term "families from New York" meant "crime families." Ciambrone also testified that Giampa loaned Andrew Thorry $5000 with interest of five percent a week, that Giampa had threatened violence if the loan were not repaid and that he, Ciambrone, had offered to repay the money for Thorry.

Finally, Ciambrone testified that he and Giampa were involved in various trucking deals together, for which Giampa provided capital, and charged exorbitant interest. Again, he said Giampa threatened violence by "Tommy" and "some people from Long Island" if the loans were not repaid. Tape recordings made by Ciambrone of three telephone conversations between Giampa and Ciambrone were played at trial. The tapes contained references to high interest loans and threats of violence by "Tommy" and "two different families." One of the

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tapes, however, was found to have an unexplained gap, where the tape had been erased or the recording machine malfunctioned.

On cross-examination, counsel for the defendant suggested that Ciambrone knew that the source of the money was not organized crime, but rather four of Giampa's friends: Michael Kowalski, Peter Enrico, Nancy Onello, and Richard Pometti. Ciambrone denied knowing Pometti and Kowalski and stated that he knew Onello but had never taken any money from her.

The Government's only other witness in chief was Ciambrone's niece, Merrie Thorry. She testified that she had been married to Andrew Thorry and during her marriage her husband had received about ten phone calls from someone identifying himself as Frank Giampa. In one of those conversations, she said, Giampa told her that her husband owed him money, and that since Andrew hadn't gotten in touch with him "it was more or less out of his hands" and warned her that "they" might send two guys to sit in front of her house and wait for her husband. Merrie Thorry testified that she was frightened by Giampa's threats.

The defense then presented its case, starting with the testimony of Giampa. Giampa testified that he was twenty-six years old, that he had never been convicted of a crime, and that he had once held the title of Mr. New Jersey. He met Ciambrone in 1981 when Ciambrone bought Container Transit, a company, from Giampa and his partners. According to Giampa, he and Ciambrone developed a "very close friendship." Giampa said he "idolized" Ciambrone, "wanted to be like him ... wanted to have what he had." Ciambrone promised Giampa he would get him a white Rolls Royce and have beautiful furniture delivered to his house. Giampa said Ciambrone bragged that he was the second best truck parts salesman in the United States and that his yard was worth a million dollars.

Eventually, Ciambrone suggested to Giampa that the two go into business together, and the two became involved in a series of transactions each involving investments by Giampa of $5000 or $10,000. Giampa also described a separate business arrangement among himself, Ciambrone, and Giampa's friend Michael Kowalski, who was suffering from a terminal illness. According to Giampa, Kowalski had been interested for some time in starting an amusement arcade, but had been unable to do so. Ciambrone promised he would open such an arcade in Hoboken, and accept Kowalski and Giampa as partners. Giampa testified that Kowalski personally gave Ciambrone a check for about $30,000, and Ciambrone never returned this money to Kowalski.

According to Giampa, Nancy Onello was involved in a third transaction with Ciambrone. Giampa testified that in his presence Ciambrone told Onello that the three of them would make a lot of money in a trucking company founded...

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