Lamberti v. U.S.
| Decision Date | 04 September 1998 |
| Docket Number | No. 96 Civ. 3900(LAK).,No. 96 Civ. 3908(LAK).,No. 97 Civ. 1866(LAK).,No. 95 Civ. 1557(LAK).,95 Civ. 1557(LAK).,96 Civ. 3900(LAK).,96 Civ. 3908(LAK).,97 Civ. 1866(LAK). |
| Parties | Salvatore LAMBERTI, Movant, v. UNITED STATES of America, Respondent. Giuseppe LAMBERTI, Movant, v. UNITED STATES of America, Respondent. Salvatore CATALANO, Movant, v. UNITED STATES of America, Respondent. Gaetano BADALAMENTI, Movant, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Mario Malerba, James A. Cohen, Malerba & LaSala, for Movant Salvatore Catalano.
Barry M. Fallick, Rochman, Platzer, Fallick & Sternheim, New York, NY, for Movant Giuseppi Lamberti.
Lawrence Schoenbach, New York, NY, for Movant Gaetano Badalamenti.
Salvatore Lamberti, pro se.
Patrick Fitzgerald, Jamie Kogan, Assistant United States Attorneys, Mary Jo White, for United States.
In one of the largest trials this district ever has seen, known popularly as the "Pizza Connection" case, twenty-one defendants stood accused of participating in a wide-spread conspiracy among members of the Sicilian mafia and La Cosa Nostra in the United States to import and distribute more than one and one-half tons of heroin and cocaine, accumulate in various pizza parlors more than one billion dollars of proceeds, and then smuggle the cash out of the country or launder it through a network of foreign bank accounts. Seventeen months of trial produced a transcript of more than 40,000 pages and resulted in numerous convictions on various of the thirty-five counts.1 Now before this Court, more than eleven years after the guilty verdicts were entered, four of the defendants move to set aside their convictions pursuant to 28 U.S.C. § 2255.2
Gaetano Badalamenti attacks his convictions on six grounds:3 that (1) the government suppressed evidence favorable to his defense regarding the allegedly exculpatory opinion of a government witness, Tomasso Buscetta, and (2) regarding Buscetta's alleged affiliation with the CIA, in violation of Brady v. Maryland,4 (3) the government threatened Buscetta in order to induce him to testify more favorably to the prosecution, (4) Badalamenti received ineffective assistance of counsel at trial, (5) his sentence violated the terms of the order of extradition from Spain pursuant to which he was released into the custody of United States authorities,5 and (6) his conviction of both narcotics conspiracy and continuing criminal enterprise counts violates the Supreme Court's holding in Rutledge v. United States.6
Gaetano Badalamenti, the former head of the Sicilian mafia, was chief among the defendants in the Pizza Connection case. Ousted from his position as the head of the Sicilian mafia commission in 1978, Badalamenti fled for his life to Brazil, from which he allegedly oversaw shipments of heroin to a distribution network located in the United States. The government's case against Badalamenti consisted primarily of tapes of intercepted telephone calls in which Badalamenti spoke with an alleged buyer in the United States regarding the shipment of "shirts," "parcels," and "containers," coupled with evidence tending to demonstrate receipt by Badalamenti's acknowledged subordinates of two shipments of narcotics in April 1983 and February 1984.7 Central to the government's case was interpretation of Badalamenti's cryptic references contained on the tapes of the phone calls.
Leading off the trial for the government was Tomasso Buscetta, a self-confessed high-level Sicilian mafioso turned informer. In addition to detailing the structure of the Sicilian mafia and its rules and regulations, Buscetta identified voices heard on the intercepted phone calls and, on cross-examination, testified as to his beliefs regarding Badalamenti's involvement or lack thereof in drug trafficking. Specifically, Buscetta stated that Badalamenti "was not against and he did not deal in drugs."8 When asked whether he ever had heard Badalamenti speak out about drug trafficking, Buscetta stated that 9 On redirect, however, Buscetta clarified his earlier testimony by stating that his opinion of Badalamenti's lack of involvement in narcotics had been based only on the period up to 1982, referred only to heroin and not cocaine, and had been premised on his knowledge that Badalamenti had been expelled from the Sicilian mafia and Buscetta's belief that mafia connections were essential to narcotics trafficking.10
Badalamenti now claims that the government knew, but failed to disclose, that Buscetta held two opinions that Badalamenti believes would have exculpated him and to which Buscetta would have testified had he been asked about them at the trial. Badalamenti contends first that Buscetta believed that Badalamenti could not have been involved in drugs because Badalamenti was a member of the "old school mafia" which did not get involved in such things. Second, Badalamenti claims that Buscetta, if asked, would have testified that, in his opinion, the coded conversations on the intercepts did not pertain to narcotics.
As proof that the government knew of Buscetta's alleged opinions, Badalamenti offers (1) Buscetta's unsworn testimony in the Italian Maxi-trial in Palermo,11 (2) a transcript in Italian and its translation into English of taped conversations between Buscetta and an American journalist, Jane Ryder, over dinner in Italy and an affidavit from Ms. Ryder,12 and (3) an affidavit from Charles Rose, the former chief of the Narcotics Section of the United States Attorney's Office for the Eastern District of New York.13
In order to establish a Brady v. Maryland violation, the defendant must show that (1) the government suppressed favorable evidence, and (2) the evidence the government suppressed was material.14 A defendant cannot satisfy the suppression requirement if the defendant, directly or through counsel, "either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence."15 As for the materiality requirement, "favorable 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."16 "A `reasonable probability' is `a probability sufficient to undermine confidence in the outcome' of the case."17
As the first step in his argument, Badalamenti offers two pieces of evidence in support of his claim that Buscetta in fact believed that Badalamenti could not have been involved in drug trafficking because he was a member of the old school mafia: Buscetta's testimony at the Italian Maxi-trial and the Charles Rose affidavit. The transcripts of Buscetta's testimony in the Italian Maxi-trial, which took place six months after Buscetta had testified in the Pizza Connection trial,18 quote Buscetta as stating that he previously had told an Italian judge that "[it] would have been impossible for [Badalamenti] to deal in drugs without having contacts with people belonging to the family," which, he stated, Badalamenti did not have.19 In his affidavit, Charles Rose stated that Buscetta called him during his testimony in the Pizza Connection trial and asked to speak with him. At their subsequent meeting, Buscetta informed Rose that "Badalamenti could not be involved in heroin trafficking because Mr. Badalamenti was part of the `old school mafia' who banned such criminal activity ... [and] that he wanted to testify as to his beliefs, but felt be [sic] was being prevented from doing do [sic] by the prosecutors."20
Assuming the admissibility of these submissions,21 they do not demonstrate that Badalamenti is entitled to relief because Badalamenti "either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence."22
Badalamenti knew of his and Buscetta's affiliations with the old school mafia and of the alleged divergence of views between the old and new schools with regard to drug trafficking. In fact, Badalamenti's counsel based a portion of his summation on the distinction.23 Badalamenti's lawyer stated during Buscetta's cross-examination, out of the presence of the jury, that he hoped to elicit "evidence, that is known among people in La Cosa Nostra, such as Mr. Buscetta, that [Badalamenti] is not a drug dealer [and] that his alignment with those who oppose drugs is very material to demonstrating that."24 During Buscetta's cross-examination, Badalamenti's counsel asked Buscetta whether he and Badalamenti were men of the old mentality of La Cosa Nostra,25 the reasons for Badalamenti's expulsion from the Sicilian mafia,26 whether he had ever heard Badalamenti speak out about drug trafficking27 and whether he knew if Badalamenti was involved in drugs.28 He elicited testimony that Buscetta "was certain that [Badalamenti] was not working in drugs."29 Thus, there is every indication that Badalamenti was aware at the time of trial of Buscetta's opinions as to the supposed differences between the old and new schools of mafia, the implication of that distinction to narcotics trafficking, and as to Badalamenti's involvement in narcotics trafficking. Nor has Badalamenti offered any indication that the Italian trial testimony was not publicly available to the defense during the trial.30
As Badalamenti knew or had ample means of discovering Buscetta's alleged views concerning the likelihood of Badalamenti's involvement in the drug trade based on the "old school" mentality, he has not satisfied the...
To continue reading
Request your trial
-
Pizzuti v. United States
...Brady violation were succinctly set forth by the Honorable Lewis A. Kaplan, United States District Judge, in Lamberti v. United States, 22 F.Supp.2d 60, 66–67 (S.D.N.Y.1998), aff'd without published opinion sub nom., Badalamenti v. United States, 201 F.3d 430 (2d Cir.1999): In order to esta......
-
Ely v. Lempke
...Brady violation were succinctly set forth by the Honorable Lewis A. Kaplan, United States District Judge, in Lamberti v. United States, 22 F. Supp. 2d 60, 66-67 (S.D.N.Y. 1998), aff'd without published opinion sub nom., Badalamenti v. United States, 201 F.3d 430 (2d Cir. 1999):In order to e......
-
Franza v. Stinson
...States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383; see also, e.g., United States v. Gambino, 59 F.3d at 365; Lamberti v. United States, 22 F.Supp.2d 60, 69-70 (S.D.N.Y.1998) (Kaplan, D.J.). "To determine whether a defendant was deprived of his due process right to a fair trial, the court......
-
Tapia-Garcia v. U.S.
...v. United States, 66 F.3d 30, 35 (2d Cir.1995); Douglas v. United States, 13 F.3d 43, 47 (2d Cir.1993); Lamberti v. United States, 22 F.Supp.2d 60, 75 (S.D.N.Y. 1998); Evans v. United States, 962 F.Supp. 25, 27 (E.D.N.Y.1997); Acevedo v. United States, 1996 WL 223937 at *6 n. 3; Keats v. Un......