Pizzuti v. United States

• Decision Date: 18 August 2011
• Docket Number: 02 Cr. 1237(RJH)(HBP).,Nos. 10 Civ. 199(RJH)(HBP),10 Civ. 2585(RJH)(HBP),s. 10 Civ. 199(RJH)(HBP)
• Citation: 809 F.Supp.2d 164
• Parties: Michael PIZZUTI, Petitioner, v. UNITED STATES of America, Respondent.Angelo DiPietro, Petitioner, v. United States of America, Respondent.United States of America, Plaintiff, v. Angelo DiPietro, et al., Defendant.
• Court: U.S. District Court — Southern District of New York

809 F.Supp.2d 164

Michael PIZZUTI, Petitioner,

v.UNITED STATES of America, Respondent.Angelo DiPietro, Petitioner,

v.United States of America, Respondent.United States of America, Plaintiff,

v.Angelo DiPietro, et al., Defendant.

Nos. 10 Civ. 199(RJH)(HBP)

10 Civ. 2585(RJH)(HBP)

02 Cr. 1237(RJH)(HBP).

United States District Court, S.D. New York.

Aug. 18, 2011.

Michael Pizzuti, Low Security Allenwood, White Deer, PA, pro se.

Joseph Genua, Butner, NY, pro se.

Bernard Alan Seidler B. Alan Seidler, Esq., Angelo DiPietro, Joseph Aaron Bondy, Law Offices of Joseph A. Bondy, New York, NY, Petitioner.Hadassa Robyn Waxman, United States Attorney Office, New York, NY, for Respondent.

OPINION AND ORDER

PITMAN, United States Magistrate Judge:I. Introduction

By motions dated July 23, September 13 and September 27, 2010 (Docket Item 5 in 10 Civ. 2585 and Docket Items 330 and 334 in 02 Cr. 1237), petitioners Angelo DiPietro and Michael Pizzuti move for discovery. For the reasons set forth below, the motions are granted in part and denied in part. Specifically, petitioners are entitled to all FBI Form 302's and notes concerning interviews with or debriefings of Maurizio Sanginiti, including an unredacted version of the Form 302 DiPietro received in response to his FOIA request. Furthermore, if the Form 302, dated March 28, 2005, produced in pretrial discovery is not identical to the unredacted version of the Form 302 produced in response to DiPietro's FOIA request, the government is also to provide an explanation of why two different versions of the same document were prepared. The government is also directed to produce the original wiretap application for Pizzuti's telephone number, 914–490–1007 if the application is in the government's possession, custody or control. The motions are denied without prejudice to renewal in all other respects.

II. FactsA. Facts Giving Rise to Petitioners' Convictions ¹

1. Background

Petitioners' convictions arose out of numerous violent crimes committed between 2001 to 2003, including crimes committed in an effort to recover money from John Perazzo, a pyramid scheme operator. DiPietro's convictions stemmed from three types of offenses: (1) those involving the extortion of Perazzo; (2) those involving a home-invasion robbery conspiracy, and (3) loansharking. Pizzuti's convictions were related solely to the extortion of Perazzo. DiPietro and Pizzuti were members of two rival groups of disgruntled investors competing for priority in reimbursement by Perazzo.

Beginning in 2001, petitioners began extorting money from Perazzo, an investment advisor who promised financial returns to petitioners that he could not deliver. Perazzo's fraudulent activity is not in dispute; he was arrested and charged by the Westchester County District Attorney's Office (“WCDAO”) on August 31, 2001, on crimes relating to his Ponzi scheme. He pled guilty as part of a state cooperation agreement.

2. The Extortion by Pizzuti's Group

Perazzo's pyramid scheme paid promised returns to investors through March 2001 (Tr. 1118).² In April 2001, investors began having difficulty getting paid by Perazzo or even contacting him (Tr. 1118–19, 1376–77). Various investors began suspecting that Perazzo was running a Ponzi scheme (Tr. 1379, 1419). On May 10, 2001, Pizzuti told co-defendant Harold Bringman that Perazzo was “taking from Peter to pay Paul, trust me” (Tr. 1379). Pizzuti subsequently began using force and threats of force to recover money from Perazzo (Tr. 1418–20).

On May 30, 2001, Pizzuti organized a group to confront Perazzo and pressure him for money (Tr. 1399–1400, 1405). Pizzuti arranged a confrontation at Perazzo's home between Perazzo and Bringman, Manny Pereira and others (Tr. 1405). At Pizzuti's behest, Pereira threatened Perazzo, kicked lights and broke other property (Supplemental Memorandum of Movant Michael Pizzuti, filed August 30, 2010 (“Pizzuti Supplemental Habeas Memo”) (Docket Item 327 in 02 Cr. 1237), at 8, citing GX 112 at 2; Tr. 1399). Pizzuti later told co-defendant Angelo Capalbo, “today, I set [Perazzo] ... up with another ten ... guys ... so I squeezed him real good” (Pizzuti Supplemental Habeas Memo at 8, citing GX 115 at 2). On June 6, 2001, Perazzo gave $10,000 to Pizzuti (Pizzuti Supplemental Habeas Memo at 8, citing GX 125 at 2–3). On June 11, 2001, a group again gathered at Perazzo's house and pressured him for more money, and Pizzuti later bragged, “it was the same gimmick like the last time” (Tr. 1423). Pizzuti described Perazzo's reaction to the meeting, stating, “the fucking guy came like a lamb, you know, taking all the fucking insults from everybody ... all kinds of names” (Tr. 1424). Pizzuti organized these events in a way that he could disavow his involvement and could appear as Perazzo's protector so that Perazzo would be more likely to pay him (Tr. 1418–20).

On June 20, 2001, Pizzuti conspired with his brother, Ralph, to use a gun to induce payment from Perazzo (Tr. 1425–26). When Ralph Pizzuti left his house with a gun, Ralph's wife called Michael Pizzuti seeking an explanation (Tr. 1426). Michael Pizzuti explained that Ralph took the gun to ensure that Perazzo would pay (Tr. 1426). Michael Pizzuti told Ralph Pizzuti's wife that Perazzo “[has] got to collect a lot of money and as soon as he collects it, he's got to pay” (Tr. 1426). When Ralph Pizzuti's wife stated that Perazzo was running a Ponzi scheme, Michael Pizzuti replied, “[w]e're all going to get our money, trust me” (Pizzuti Supplemental Habeas Memo at 9, citing GX 132 at 4).

3. The June 29, 2001 Kidnapping by DiPietro's Group

In Spring 2001, co-defendant Maurizio Sanginiti recruited DiPietro to collect from Perazzo because of DiPietro's reputation as a “tough guy” who excelled at collecting money (Tr. 1123–26, 1912–14, 2562–63). On June 28, 2001, following his receipt of a check for $147,000 from Perazzo that the drawee bank refused to pay, Sanginiti agreed with DiPietro and Capalbo to kidnap Perazzo (Tr. 1126, 1460, 1484, 1934, 2154, 2574–75). The kidnapping was intended to ensure they were repaid before Pizzuti (Tr. 1126). On June 29, 2001, Perazzo was kidnapped in Yonkers at the Cross County Shopping Center (Tr. 1134–35). Joseph Genua, Richard Wieland and Frank Taddeo were among the individuals involved (Tr. 1136–37).

The kidnapping took place as follows: Sanginiti, Genua and others waited in a white van in a parking lot near an Applebee's restaurant for Perazzo to be brought over to them (Tr. 1134–44, 1150, 1170–71, 1934, 1939, 1985). When Perazzo reached the van, Genua grabbed Perazzo by the neck, placed him in the front seat and told Perazzo “to shut the fuck up and do what I tell you” (Tr. 1139–40). Genua, who was in back of Perazzo in the van, wrapped his arm around Perazzo's neck and held Perazzo in the seat (Tr. 1141). Perazzo began “sweating, changing colors [and was] nervous [and] stuttering” (Tr. 1140).

The kidnappers took Perazzo to the basement of DiPietro's house in Mount Vernon, New York (Tr. 1141–44). Perazzo was stripped to ensure he wasn't wearing a recording device (Tr. 1157–58, 1943). DiPietro held a revolver to Perazzo's face and asked when Perazzo would come up with the money (Tr. 1158–59). Genua threatened to blow off Perazzo's genitals with an explosive device (Tr. 1161–62, 2527–33, 2567). Perazzo eventually told his kidnappers he had money in the trunk of his car (Tr. 1163, 1165). Genua and DiPietro's son, Anthony DiPietro, returned to the Cross County Shopping Center and retrieved $11,000 from Perazzo's car, and Perazzo was released (Tr. 750, 1163, 1168–69). Following the kidnapping, Genua stayed at Perazzo's house for a few days to monitor Perazzo at DiPietro's behest and control any money that came into Perazzo's possession (Tr. 1187, 2554).

On June 30, 2001, DiPietro and others met with Perazzo to pressure him not to report the kidnapping and to repay the money (Tr. 1175–76, 1494, 2052–53). During the meeting, Perazzo's car was searched for more money (Tr. 1180, 1183–86, 1494–95, 1616–20). No money was found, but a letter was found that Perazzo had written to the FBI and other law enforcement authorities (Tr. 1180, 1183–86, 1494–95, 1582, 1616–20). The letter read that “[b]y you receiving this letter, I am either dead or kidnapped again and will shortly be dead” (Tr. 1618). Perazzo's letter stated that he had been kidnapped from Applebee's on June 29, 2001 by Sanginiti, Capalbo, “another Angelo and a Frank” (Tr. 1618). The letter stated that Pizzuti would know the full names of Perazzo's kidnappers and gave Pizzuti's name and business and home addresses and telephone numbers (Tr. 1618). The letter further stated that an attorney named Al Mosiello was also involved (Tr. 1619). The letter gave details of the “drastic actions” that had been taken against Perazzo, including threats to “[c]ut [him] up and put [him] into body bags” (Tr. 1619).

4. The July 9, 2001 Kidnapping by Pizzuti

On July 9, 2001, DiPietro's associate, Weiland, was staying in Perazzo's home to monitor Perazzo (Tr. 1535–36, 2567–68). Pizzuti found this out, and Pizzuti's group headed to Perazzo's house out of concern that Perazzo was favoring DiPietro's group with respect to the repayment of money (Tr. 1188, 1521–24, 1534–36). When Pizzuti's group arrived, Weiland called Sanginiti to inform him (Tr. 1188, 1831, 2569). Sanginiti, in turn, called DiPietro and Capalbo and arranged a meeting (Tr. 1188). DiPietro also called Din Celaj and Marc Nickolson and told them to meet him and to bring guns to the meeting (Tr. 1188, 4316–17). DiPietro's group devised a plan to take Perazzo away from Pizzuti's group (Tr. 4320).

When DiPietro's group arrived at Perazzo's house, Pizzuti was holding a rifle to Perazzo's face (Tr. 1196, 1199–2000, 1256–60, 1539, 2418–32, 3750). Pizzuti told DiPietro's group that they had to go through him if they wanted money from Perazzo (Tr. 1196, 1217–18, 4327). Pizzuti then dragged Perazzo out of the...